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A  TREATISE 


ON 


PLEADING  AND  PRACTICE  IN  EQUITY 


IN 


THE   COURTS   OF   THE   UNITED   STATES; 

WITH    CHAPTERS    ON 

JURISDICTION  OF  THE    FEDERAL    COURTS,  PRACTICE    AT  COMMON 

LAW,    REMOVAL    OF    CAUSES    FROM    STATE    TO    FEDERAL 

COURTS,  AND   WRITS  OF  ERROR  AND  APPEALS, 

WITH  SPECIAL  REFERENCE  TO  PATENT  CAUSES  AND   THE 
FORECLOSURE   OF  RAILWAY  MORTGAGES. 


By    ROGER    FOSTER, 

OF  THE  NEW   YORK   BAR, 

AUTHOR  OF  "FOSTER'S   FEDERAL  JUDICIARY   ACTS"  AND  "TRIAL   BY   NEWSPAPER;" 

AND  LECTURER  ON    FEDERAL  JURISPRUDENCE   AT   THE   LAW 

SCHOOL    OF    YALE    UNIVERSITY. 


BOSTON: 
THE  BOSTON  BOOK  COMPANY. 

1890. 


Copyright,  1890, 
By  Kogeb  Foster. 


T 


JSnfbetsftD  Stress : 
John  Wilson  and  Son,  Cambridge. 


I 


-4. 


TO 

Cfje  jfflemorp  of  mp  JFatljer, 

DWIGHT   FOSTER, 

FORMERLY    JUSTICE    OF    THE    SUPREME    JUDICIAL    COURT 
OF    MASSACHUSETTS, 

/  DEDICATE    THIS  BOOK, 

BEGUN   AT    HIS   SUGGESTION, 
ALTHOUGH    HE   DID   NOT   LIVE    TO   CORRECT   ITS    FAULTS. 


PREFACE. 


The  object  of  this  work  is  to  furnish  a  guide  to  the 
whole  field  of  practice  in  the  Federal  Courts,  except  in 
cases  of  admiralty,  criminal  prosecutions,  and  before  the 
Court  of  Claims ;  including  references  to  all  the  statutes 
and  the  principal  decisions  upon  the  subject.  Greater 
space  has  been  given  to  practice  in  equity  on  account  of 
its  importance  and  obscurity.  The  chapter  on  the  practice 
on  Writs  of  Error  and  Appeals  is  not  intended  as  more 
than  a  summary  which  may  be  of  convenience  to  the 
practitioner.  The  practice  in  the  Supreme  Court  of  the 
United  States  cannot  be  adequately  described  in  less  than 
at  least  one  volume.  The  author  has  used  with  great 
freedom  many  treatises  on  chancery  pleadings  and  prac- 
tice, and  collections  of  annotations  upon  statutes  of  the 
United  States.  Besides  the  great  work  of  Lord  Redes- 
dale,  he  is  especially  indebted  for  assistance  to  Daniell's 
Chancery  Practice,  with  the  notes  of  successive  editors, 
including  those  of  Chancellor  Cooper ;  Bump's  annota- 
tions of  the  statutes  regulating  Federal  Procedure;  and 
the  manuscript  lectures  on  equity  pleading  delivered  be- 
fore the  Law  School  of  Boston  University,  by  the  late 
Judge  D wight  Foster.  The  citations  from  Daniell  are 
taken  from  the  second  and  fifth  American  editions.  The 
writer  is  aware   that  both   these   editions  contain    many 


vi  PREFACE. 

rules  of  modern  English  chancery  practice  which  are  not 
binding  upon  the  courts  of  the  United  States ;  but  he  has 
been  careful  to  exclude  all  such  from  this  work.  The  fact 
that  these  later  editions  are  more  accessible  to  the  profes- 
sion is  his  reason  for  referring  to  them  rather  than  to  the 
first  American  edition.  He  has  received  great  assistance 
and  encouragement  from  many  members  of  the  bench  and 
bar;  especially  from  his  teachers,  Professor  Theodore  W. 
Dwight  and  ex-Judge  John  F.  Dillon,  and  from  John  A. 
Shields,  Esq.,  the  Clerk  of  the  Circuit  Court  of  the  United 
States  for  the  Southern  District  of  New  York,  who  has 
very  kindly  examined  and  approved  the  chapter  on  Costs. 
He  is  fully  conscious  that  the  book  contains  many  errors 
and  omissions.  The  pressing  need  of  a  treatise  upon  the 
subject  is  his  only  excuse  for  the  publication  of  so  imper- 
fect a  work.  And  he  will  welcome  any  criticism,  whether 
public  or  private,  which  will  show  him  how,  in  a  subse- 
quent edition,  to  make  it  more  useful  to  the  profession. 


New  York, 

August  31,  1889. 


TABLE  OF  CONTENTS. 


Page 

Table  of  Cases       xxiii 

Table  of  Statutes     . lxxvi 

Table  of  Equity  Rules lxxx 

Table  of  Rules  of  Supreme  Court lxxx 


CHAPTER    I. 

JURISDICTION. 

§  1.     Equitable  Jurisdiction  in  General „     .     .     .  1 

2.  General  Survey  of  the  Jurisdiction  of  Courts  of  Equity  ....  3 

3.  Constitutional  Provisions  affecting  the  Jurisdiction  of  the  Federal 

Courts 4 

4.  The  Distinction  between  Law  and  Equity  in  the  Federal  Courts  .  5 

5.  General  Rules  affecting  the  Jurisdiction  in  Equity  of  the  Federal 

Courts « 6 

6.  State  Statutes  cannot  impair  the  Jurisdiction  nor  regulate  the 

Practice  of  Federal  Courts  of  Equity 8 

7.  State  Laws  creating  new  Rights  are  enforced  by  Federal  Courts  of 

Equity 9 

8.  State  Statutes  of  Limitation 10 

9.  Property  in  the  Custody  of  a  State  Court 11 

10.  Property  in  the  Custody  of  a  Federal  Court 12 

11.  Illustrations  of  Equitable  Jurisdiction  in  the  Federal  Courts    .     .  12 

12.  Illustrations  of  Cases  where  the  Federal  Courts  have  refused  to 

assume  Equitable  Jurisdiction     .     c     „ 15 

13.  Federal  Courts  which  have  Jurisdiction  in  Equity  ......  20 

14.  Original  Jurisdiction  of  the  Supreme  Court 20 

15.  Original  Jurisdiction  of  the  Circuit  Courts  of  the  United  States    .  21 

16.  Matter  in  Dispute 23 

17.  Suits   arising   under   the    Constitution   or   Laws   of   the   United 

States 25 

18.  Controversy  between  Citizens  of  different  States 26 

19.  Citizenship 26 

20.  Under  Grants  of  different  States 27 

21.  Ancillary  Jurisdiction 28 

22.  Limitations  upon  Jurisdiction  by  Residence 29 


vill  TABLE   OF   CONTENTS. 

Page 
§  23.     Special  Limitation  upon  Jurisdiction  of  Circuit  Court  for  Southern 

District  of  New  York 32 

24.  Suits  by  Assignees 32 

25.  Jurisdiction  of  the  District  Courts  of  the  United  States  ....     34 

26.  Territorial  Jurisdiction  and  Terms  of  the  Supreme,  Circuit,  and 

District  Courts  of  the  United  States 35 

27.  Sources  of  Federal  Equity  Practice 56 

Note  upon  Limitations  on  Jurisdiction  by  Residence  in  certain 

States 58 


CHAPTER  II. 

PERSONS  WHO  MAY   BE   PLAINTIFFS   OR   DEFENDANTS   IN   A    SUIT 
IN   EQUITY. 

28.  General  Rule  as  to  Persons  capable  of  being  Plaintiffs     ....  64 

29.  States  as  Plaintiffs 64 

30.  Alien  Enemies  as  Plaintiffs 64 

31.  Married  Women  as  Plaintiffs 64 

32.  Suits  on  behalf  of  Infants 65 

33.  Suits  on  behalf  of  Idiots,  Lunatics,  and  Persons  of  Weak  Mind     .  67 

34.  Capacity  of   Foreign  Executors,  Administrators,  and   Receivers 

to  sue 68 

35.  Who  may  be  Defendants  to  a  Bill  in  Equity 68 

36.  The  United  States  as  a  Defendant 68 

37.  Liability  of  States  to  Suits  by  Private  Persons 71 

38.  Liability  of  a  State  to  a  Suit  by  another  State 77 

39.  Suits  against  Infants 78 

40.  Suits  against  Idiots,  Lunatics,  and  Persons  of  Weak  Mind  ...  79 

41.  Suits  against  Married  Women 80 


CHAPTER  III. 

PARTIES. 

42.  General  Rule  as  to  Parties      . 81 

43.  Parties  with  no  Interest  in  the  Subject-Matter  of  the  Suit    ...     82 

44.  Persons  who  on  account  of  their  Interest  need  not  be  made  Parties 

to  a  Suit  in  Equity 83 

45.  Cases  where  the  Law  has  furnished  a  Representative 85 

46.  Suits  by  a  Complainant  on  behalf  of  himself  and  others  similarly 

situated 88 

47.  Illustrations  of  Bills  filed  by  Representatives 89 

48.  Suits  against  one  or  more  of  a  Class 90 

49.  Suits  by  or  against  one  or  more  as  Representatives  of  a  Class 

claiming  a  Common  Right 91 

50.  Omission  of  Defendants  not  within  the  Jurisdiction  of  the  Court  .     92 


TABLE   OF   CONTENTS.  ix 

Page 
§  51.     Formal   Parties  who  may  be  omitted  when  without  the  Juris- 
diction      95 

52.  Parties  whose  Interest  is  Separable 96 

53.  Parties  indispensable  to  a  Decree 98 

54.  When  Numerous  Interests  have  been  created  for  the  Purpose  of 

preventing  the  Plaintiff  from  obtaining  Equitable  Relief     .     .     102 

55.  When  a  Person  consents  to  the  Relief  sought 102 

56.  When  the  Plaintiff  waives  his  Right  against  a  Person    ....     103 

57.  When  the  Interest  of  an  absent  Person  is  evidently  very  small    .     103 

58.  When  the  Right  of  Administration  is  in  Dispute 103 

59.  Relaxation  of  Rules  as  to  Parties  in  Special  Cases 103 

60.  Restatement  of  the  Rules  as  to  Parties 104 

61.  Objection  for  Want  of  Parties 105 

62.  Objection  for  Joinder  of  Improper  Parties 106 


CHAPTER   IV. 

BILLS. 

63.  Informations 108 

64.  Definition  and  Classification  of  Bills 109 

65.  Frame  of  a  Bill  in  Equity .  Ill 

66.  The  Address  and  Introduction 112 

67.  The  Narrative  Part  of  a  Bill 113 

68.  Scandal  and  Impertinence 114 

69.  Certainty 116 

70.  Inconsistency  and  Bills  with  a  Double  Aspect 117 

71.  Multifariousness  in  General 119 

72.  Multifariousness  by  Misjoinder  of  Plaintiffs 120 

73.  Multifariousness  by  Misjoinder  of  Defendants 122 

74.  Multifariousness  without  Misjoinder  of  Parties 124 

75.  Objections  for  Multifariousness 126 

76.  Special  Provisions  of  the  Federal  Equity  Rules  and  Practice  .     .  127 

77.  Bills  to  enjoin  the  Infringement  of  Patents 129 

78.  General  Rules  of  Equity  Pleading 131 

79.  The  Common  Confederacy  Clause 133 

80.  The  Charging  Part 134 

81.  The  Jurisdiction  Clause 134 

82.  The  Interrogatory  Clause 135 

83.  The  Prayer  for  Relief 136 

84.  Waivers  and  Offers 137 

85.  The  Prayer  of  Process 140 

86.  The  Signature  to  a  Bill 141 

87.  Affidavits  to  Bills 142 

88.  Bills  of  Interpleader 142 

89.  Bills  in  the  Nature  of  Interpleader 146 

90.  Bills  of  Certiorari 146 


X  TABLE    OF   CONTENTS. 

CHAPTER  V. 

SUBPOENAS   TO   APPEAR   AND   ANSWER. 

Page 

§  91.     Definition  and  Form  of  Subpoena 148 

92.  Issue  of  the  Subpoena .  150 

93.  When  a  Subpoena  is  necessary  . 150 

94.  Personal  Service  of  a  Subpoena 151 

95.  Service  upon  Corporations 153 

96.  Substituted  Service  of  a  Subpoena 155 

97.  Statutory  Service  of  a  Subpoena 157 

98.  Exemptions  from  Service  of  a  Subpoena 159 

CHAPTER  VI. 

APPEARANCE. 

99.     Definition  of  an  Appearance 161 

100.  What  constitutes  an  Appearance 161 

101.  Effect  of  an  Appearance 162 

102.  When  an  Appearance  must  be  made 162 

CHAPTER  VII. 

TAKING   BILLS   PRO   CONFESSO. 

103.  When  a  Bill  may  be  taken  pro  confesso „  164 

104.  Practice  in  taking  a  Bill  pro  confesso 165 

CHAPTER  VIII. 

DEMURRERS. 

105.  Definition  and  General  Characteristics  of  a  Demurrer  ....  170 

106.  Admissions  by  a  Demurrer 170 

107.  Demurrers  to  Parts  of  Bills 172 

108.  Classification  of  Demurrers  to  the  Relief        174 

109.  Demurrers  to  the  Discovery 177 

110.  Of  what  Defects  Advantage  should  be  taken  by  Demurrer    .     .  178 

111.  When  a  Demurrer  should  be  Filed 178 

112.  Title  of  Demurrer 179 

113.  Protestation 179 

114.  Statement  of  the  Extent  of  the  Demurrer 179 

115.  Statement  of  Causes  of  Demurrer 180 

116.  Demurrers  ore  tenus        182 

117.  Prayer  of  Judgment 182 

118.  Certificate  of  Counsel 183 


TABLE   OF   CONTENTS.  XI 

Page 

§  119.  Motions  to  take  Demurrers  off  the  File  .......<,     .  183 

120.  Setting  Demurrer  down  for  Argument 184 

121.  Argument  of  Demurrer 184 

122.  Overruling  a  Demurrer 185 

123.  Sustaining  a  Demurrer 186 

CHAPTER  IX. 

PLEAS. 

124.  Definition  and  Classification  of  Pleas 188 

125.  Pleas  in  Abatement  in  General 190 

126.  Pleas  to  the  Jurisdiction 191 

127.  Pleas  to  the  Person 191 

128.  Pleas  to  the  Bill 192 

129.  Plea  of  Pendency  of  another  Suit        193 

130.  Plea  of  Want  of  Parties 196 

131.  Plea  of  Statute .     .  196 

132.  Plea  of  Matter  of  Record 198 

133.  Plea  of  Matter  in  Pais 199 

134.  Pleas  to  the  Discovery 200 

135.  When  a  Plea  must  be  filed 200 

136.  Frame  of  a  Plea 201 

137.  Answers  with  Pleas     . 202 

138.  Proceedings  of  the  Plaintiff  when  a  Plea  is  filed 204 

139.  Motion  to  take  a  Plea  off  the  File 205 

140.  Argument  of  a  Plea 206 

141.  Motion  for  a  Reference  of  a  Plea 20S 

142.  Hearing  upon  Pleas 209 

143.  General  Remarks  upon  Pleas 210 


CHAPTER  X. 

ANSWERS    AND    DISCLAIMERS. 

144.  Pleading  Defenses  in  an  Answer 211 

115.  Defenses  peculiar  to  Patent  Cases 212 

146.  Admissions  and  Denials  independent  of  Discovery 215 

147.  Impertinence  and  Scandal 216 

148.  Discovery 217 

149.  Proceedings  to  compel  Answer 221 

150.  Frame  of  Answer 221 

151.  Signature  and  Oath  to  Answer 223 

152.  Motions  to  take  Answers  off  the  File 224 

153.  Exceptions  for  Insufficiency 225 

154.  Supplemental  Answers 228 

155.  Disclaimers 228 


Xii  TABLE   OF   CONTENTS. 

CHAPTER  XL 

REPLICATIONS. 

Page 

§  156.     Definition  and  History  of  Replications 230 

157.  When  a  Replication  should  be  Filed 231 

158.  Effect  of  a  Replication 232 

159.  Frame  of  a  Replication 232 

CHAPTER  XH. 

AMENDMENTS. 

160.  Amendments  in  General 234 

161.  When  Bills  can  be  Amended 234 

162.  Form  and  Effect  of  Amendment  of  a  Bill 236 

163.  What  Amendments  to  Bills  may  be  made 237 

164.  Amendment  by  Pleading  Matters  subsequent  to  the  Filing  of 

the  Bill 239 

165.  Proceedings  upon  an  Amended  Bill 241 

166.  Amendment  of  Demurrers,  Pleas,  and  Replications      ....  242 

167.  Amendment  of  Answers 242 

168.  Practice  in  obtaining  Leave  to  Amend 244 

CHAPTER  XIII. 

CROSS-BILLS. 

169.  Definition  and  Origin  of  Cross-Bills 246 

170.  When  a  Cross-Bill  should  be  Filed 246 

171.  When  a  Cross-Bill  should  not  be  Filed 247 

172.  Frame  of  a  Cross-Bill 250 

173.  Proceedings  upon  Cross-Bills 252 

CHAPTER   XIV. 

BILLS  OF  REVIVOR  ;  SUPPLEMENTAL  BILLS  ;  BILLS  OF  REVIVOR 
AND  SUPPLEMENT  ;  AND  BILLS  IN  THE  NATURE  OF  THE 
SAME. 

174.  Abatement 255 

175.  Effect  of  Abatement 257 

176.  When  a  Suit  may  be  Revived  and  Effect  of  Revivor     ....  258 

177.  Who  may  Revive  a  Suit 259 

178.  Manner  of  Revivor  in  General 260 


TABLE    OF   CONTENTS.  xill 

Page 

§  179.     Definition  of  Bills  of  Revivor  and  Parties  to  the  Same      ...  261 

180.  Frame  of  a  Bill  of  Revivor 262 

181.  Proceedings  upon  Bills  of  Revivor 263 

182.  Bills  in  the  Nature  of  Bills  of  Revivor  in  general 266 

183.  Frame  of  Bills  in  the  Nature  of  Bills  of  Revivor  and  Proceed- 

ings upon  them 267 

184.  Bills  of  Revivor  and  Supplement 268 

185.  Supplemental  Bills  in  the  Nature  of  Bills  of  Revivor    ....  268 

186.  What  renders  a  Suit  defective 269 

187.  Supplemental  Bills 270 

188.  Parties  and  Frame  of  a  Supplemental  Bill 272 

189.  Proceedings  upon  Supplemental  Bills .     .  273 

190.  Bills  in  the  Nature  of  Supplemental  Bills  in  general    ....  276 

191.  Frame  of  a  Bill  in  the  Nature  of  a  Supplemental  Bill  ....  277 

192.  Proceedings  upon  Bills  in  the  Nature  of  Supplemental  Bills      .  277 


CHAPTER  XV. 

INTERLOCUTORY   APPLICATIONS   AND    PETITIONS. 

193.  Definition  and  Classification  of  Interlocutory  Applications    .     .  279 

194.  Definition  and  Classification  of  Motions 279 

195.  Motions  of  Course 279 

196.  Special  Motions  without  Notice 280 

197.  Notice  of  Motion 282 

198.  Argument  of  Motions 285 

199.  Petitions  in  General 287 

200.  Petitions  for  Leave  to  Sue  in  forma  pauperis  .......  288 

201.  Petitions  of  Intervention 290 

202.  Form  of  Petitions  and  Practice  upon  them 292 

203.  Orders 293 

204.  Judges  who  may  grant  Orders 295 


CHAPTER  XVI. 

INJUNCTIONS. 

205.  Definition,  Classification,  and  Objects  of  Injunctions  ....     297 

206.  Injunctions  to  enforce  Trusts  and  other  purely  Equitable  Rights     297 

207.  Injunctions    to     restrain    Corporations    from    violating    their 

Charters 298 

208.  Injunctions  to  enforce  the  Specific  Performance  of  Covenants 

and  other  Contracts  affecting  Land 300 

209.  Injunctions  to  restrain  a  Multiplicity  of  Suits 301 

210.  Injunctions  to  prevent  Irreparable  Injury  for  which  the  Remedy 

at  Law  is  inadequate ;  in  general 302 


XIV  TABLE   OF   CONTENTS. 

Page 

§  211.     Injunctions  to  stay  Proceedings  in  other  Courts 302 

212.  Injunctions  to  restrain  the  Alienation  of  Property 305 

213.  Injunctions  to  prevent  Waste 306 

214.  Injunctions  to  prevent  the  Continuance  of  a  Nuisance       .     .     .  307 

215.  Injunctions  to  restrain  Trespass 309 

21G.     Injunctions  to  restrain  the  Infringement  of  Patents     ....  310 

217.  Injunctions  to  restrain  the  Infringement  of  Copyrights     .     .     .  314 

218.  Injunctions  to  restrain  the  Unlawful  Use  of  Trade-marks     .     .  317 

219.  Injunctions  to  prevent  the  Opening  of  Letters 318 

220.  Injunctions  to  compel  the  Performance  or  prevent  the  Breach 

of  Contracts  not  affecting  Land 318 

221.  Injunctions  to  compel  the  Delivery  of  Personal  Property  tor- 

tiously  withheld 319 

222.  Injunctions  authorized  by  Statute 319 

223.  When  Injunctions  will  not  Issue 321 

224.  Distinction  between  the  Judicial  Writ  and  the  Writ  Remedial  324 

225.  Distinction  between  Mandatory  and  Prohibitory  Injunctions     .  324 

226.  Distinction  between  Provisional  and  Perpetual  Injunctions  .     .  325 

227.  Distinction  between  Common  and  Special  Injunctions      .     .     .  326 

228.  Time  and  Place  of  Applications  for  Interlocutory  Injunctions   .  326 

229.  Injunctions  not  prayed  for  in  the  Bill 327 

230.  Special  Practice  of  the  Federal  Courts  in  the  Issue  of  Injunc- 

tions      328 

231.  Notice  of  Application  for  Interlocutory  Injunction      ....  330 

232.  Affidavits  upon  an  Application  for  an  Injunction 331 

233.  Rules  of  Decision  upon  Applications  for  Interlocutory  Injunc- 

tions      333 

234.  The  Writ  of  Injunction 334 

235.  Dissolution  of  Interlocutory  Injunctions  in  general       ....  335 

236.  Dissolution  of  Injunctions  for  Causes  arising  after  their  Issue  .  337 

237.  The  Imposition  of  Terms  upon  the  Issue,  Denial,  Dissolution, 

or  Continuance  of  an  Injunction 338 

238.  Perpetual  Injunctions 340 


CHAPTER  XVII. 

RECEIVERS. 

239.  Definition  of  Receiver 342 

240.  When  Receivers  will  be  Appointed 342 

241.  Rules  regulating  the  Appointment  of  Receivers 346 

242.  Ancillary  Receivers 346 

243.  Terms  upon  the  Appointment  of  Receivers,  and  Preferences  in 

Foreclosure  Suits 347 

244.  Property  over  which  Receivers  may  be  Appointed 356 

245.  Powers  of  Receivers  in  general 359 

246.  Powers  of  Receivers  of  Railroads 361 


TABLE   OF   CONTENTS.  XV 

Page 

§  247.  Receivers'  Certificates 365 

218.  Advice  to  Receivers 368 

249.  Litigation  by  Receivers 369 

250.  Duties  of  Receivers 372 

251.  Liability  of  a  Receiver 374 

252.  Manner  of  applying  for  the  Appointment  of  a  Receiver    .     .     .  376 

253.  Who  may  apply  for  the  Appointment  of  a  Receiver     ....  378 

254.  Manner  of  the  Appointment  of  a  Receiver 379 

255.  Who  should  be  appointed  Receiver 379 

256.  The  Receiver's  Security 381 

257.  Receivers'  Accounts 383 

258.  Compensation  of  Receivers 384 

259.  Removal  of  Receivers 385 

260.  Discharge  of  a  Receiver 387 


CHAPTER  XVIII. 

THE    WRIT    OF    NE    EXEAT   REPUBLICA. 

261.  Definition  of  the  Writ  of  Ne  Exeat  Republica,  and  when  it  will 

Issue 389 

262.  Against  whom  the  Writ  will  Issue 390 

263.  Practice  in  obtaining  the  Writ  of  Ne  Exeat 391 


CHAPTER   XIX. 

EVIDENCE   AT   LAW  AND   IN   EQUITY. 

264.  Evidence  in  General 395 

265.  Admissions 395 

266.  Constructive  Admissions 396 

267.  Documentary  Evideuce  in  General 397 

268.  Federal  Statutes  regulating  Admission  of  Documentary  Evi- 

dence    398 

269.  Definition  and  Use  of  an  Affidavit 406 

270.  Manner  of  Verifying  an  Affidavit 406 

271.  Title  of  an  Affidavit 407 

272.  Form  of  an  Affidavit 407 

273.  Execution  of  an  Affidavit 408 

274.  Competency  of  Witnesses 409 

275.  Subpoenas  ad  Testificandum 411 

276.  Service  of  a  Subpoena  ad  Testificandum 412 

277.  Compelling  a  Witness  to  testify 412 

278.  Testimony  taken  in  Equity  which  maybe  used  in  other  Courts  .  413 

279.  Bills  to  perpetuate  Testimony 413 


XVI  TABLE   OF   CONTENTS. 

Page 

§  280.     Bills  to  take  Testimony  de  bene  esse 416 

281.  Bills  of  Discovery 416 

282.  Testimony  taken  before  a  Cause  is  at  Issue 418 

283.  Testimony  taken  after  a  Cause  is  at  Issue  within  the  Jurisdic- 

tion of  the  Court 419 

284.  Present  Method  of  taking  Testimony  within  the  Jurisdiction     .  420 

285.  Testimony  taken  after   a  Cause   is  at   Issue  and  beyond  the 

Jurisdiction  of  the  Court 423 

286.  Depositions  de  bene  esse  under  the  Acts  of  Congress      ....  424 

287.  Form  of  Deposition  under  Acts  of  Congress 426 

288.  Commission  issued  under  a  Dedimus  Potestatem 427 

289.  Proceedings  under  a  Dedimus  Potestatem 428 

290.  Letters  Rogatory 432 


CHAPTER  XX. 

DISMISSING    BILLS    OTHERWISE    THAN    AT    A    HEARING. 

291.  Dismissal  of  Bills  by  the  Plaintiff .     .  434 

292.  Dismissal  of  Bills  for  want  of  Prosecution 435 

293.  Dismissal  for  want  of  Jurisdiction 436 

294.  Dismissal  for  Failure  to  perfect  or  revive  a  Suit 439 

295.  Election 439 


CHAPTER  XXI. 

THE  HEARING. 

296.  Bringing  a  Suit  to  a  Hearing 441 

297.  Manner  of  Hearing  a  Cause * 441 

298.  Rules  of  Decision  upon  a  Hearing 442 

299.  Objections  which  cannot  be  made  at  the  Hearing 444 

300.  Action  of  the  Court  upon  a  Hearing 445 


CHAPTER  XXII. 

ISSUES   AT   LAW. 

301.  Power  of  Courts  to  direct  Issues  at  Law 447 

302.  Matters  concerning  which  an  Issue  is  directed 448 

303.  Time  when  an  Issue  is  directed 449 

304.  Manner  of  trying  an  Issue 449 

305.  Effect  of  the  Finding  of  a  Jury  upon  an  Issue 451 

306.  Proceedings  after  the  Trial  of  an  Issue 453 


TABLE    OF   CONTENTS.  xvii 

CHAPTER  XXIII. 

PROCEEDINGS   IN    A   MASTER'S    OFFICE. 

Page 

§  307.     References  to  Masters  in  General 454 

308.  Who  may  be  appointed  Master 455 

309.  Bringing  on  a  Reference 455 

310.  Parties  entitled  to  attend  a  Reference  before  a  Master      .     .     .  456 

311.  Proceedings  before  a  Master  in  General 457 

312.  A  State  of  Facts 459 

313.  Evidence  before  a  Master 460 

314.  Masters'  Reports  and*  Compensation 461 

315.  Exceptions  to  Masters'  Reports 462 

316.  Sales  by  Masters 463 

CHAPTER  XXIV. 

DECREES. 

317.  Definition  and  Classification  of  Decrees 466 

318.  Final  and  Interlocutory  Decrees 466 

319.  Decrees  in  personam 467 

320.  Decrees  in  rem 469 

321.  Absolute  and  Conditional  Decrees 469 

322.  Decrees  nisi 470 

323.  Decrees  in  the  Nature  of  Decrees  nisi 473 

324.  Time  of  Entry  of  Decree 473 

325.  Frame  of  Decrees 474 


CHAPTER   XXV. 

COSTS   AT   LAW   AND    IN   EQUITY. 

326.  Definition  of  Costs  and  Distinction  between  Costs  at  Law  and 

in  Equity 477 

327.  Who  are  given  Costs 477 

328.  Classification  of  Costs 481 

329.  Costs  as  between  Party  and  Party 481 

330.  Attorney's  Fees 481 

331.  Clerk's  Fees 484 

332.  Marshal's  Fees 489 

333.  Witnesses'  Fees 491 

334.  Miscellaneous  Disbursements 494 

335.  Costs  out  of  the  Fund 496 

336.  Costs  as  between  Solicitor  and  Client 497 

337.  Taxation  of  Costs 498 

338.  Security  for  Costs 498 

b 


XVm  TABLE    OF   CONTENTS. 

CHAPTER  XXVI. 

ENFORCEMENT  OF  DECREES  AND  ORDERS. 

Page 

§  339.     Enforcement  of  Decrees  and  Orders,  in  General 500 

340.  Executions 500 

341.  Contempts 502 

342.  Notice  of  Application  for  Attachment 504 

343.  Hearings  upon  Applications  for  Attachments 505 

344.  Order  of  Commitment 506 

345.  Writ  of  Attachment 507 

34G.     Execution  of  Writ  of  Attachment 507 

347.  Sequestration 509 

348.  Writ  of  Assistance 510 

349.  Action  by  Court  itself 511 


CHAPTER  XXVII. 

CORRECTION  OF  DECREES  OTHERWISE  THAN  BY  APPEAL. 

350.  Correction  of  Decrees  in  General 513 

351.  Amendment  upon  Petition  without  a  Rehearing 513 

352.  Petitions  for  a  Rehearing 514 

353.  Supplemental  Bills  in  the  nature  of  Bills  of  Review     ....  517 

354.  Bills  of  Review 518 

355.  Provisions  peculiar  to  Bills  of  Review  for  Matters  of  Fact  newly 

discovered 520 

356.  Provisions  common  to  all  Bills  of  Review 521 

357.  Bills  in  the  nature  of  Bills  of  Review 525 

358.  Bills  to  impeach  Decrees  on  Account  of  Fraud 526 

359.  Bills  to  Suspend  or  Avoid  the  Operation  of  Decrees     ....  527 


CHAPTER  XXVIII. 

PRACTICE    AT   COMMON   LAW. 

360.  Common-Law  Practice  in  General 529 

361.  Writs  and  Process  in  General 531 

362.  Writs  of  Prohibition 532 

363.  Writs  of  Mandamus 533 

364.  Practice  on  Application  for  Mandamus       ........  537 

365.  Writs  of  Certiorari 540 

366.  Writs  of  Habeas  Corpus  in  General 541 

367.  Practice  on  Application  for  Writs  of  Habeas  Corpus     .     .    '.     .  545 

368.  Appeals  in  Habeas  Corpus  Proceedings        548 


TABLE   OF   CONTENTS.  XIX 

Page 

369.  Attachment  of  Property 549 

370.  Arrests 550 

371.  Consolidation  at  Law  and  in  Equity 550 

372.  Evidence,  Testimony,  and  Depositions 551 

373.  Abatement  and  Revivor  at  Common  Law 553 

374.  Trials 554: 

375.  Rules  of  Decision  at  Common  Law 556 

376.  New  Trials 559 

377.  Bills  of  Exceptions 559 

378.  Judgments 560 

379.  Correction  of  Judgments  by  Courts  that  rendered  them    .     .     .  561 

380.  Executions  and  Proceedings  Supplementary  thereto     ....  562 

381.  Condemnation  Proceedings 565 


CHAPTER  XXIX. 

REMOVAL    OF    CAUSES. 

382.  Removal  of  Causes  from  one  Federal  Court  to  another      .     .     .  566 

383.  Causes  which  may  be  removed  from  a  State  Court  to  a  Circuit 

Court  of  the  United  States 567 

384.  Separable  Controversies 570 

385.  Practice  on  Removal  in  General 572 

386.  Practice  on  Removal  for  Prejudice  or  Local  Influence  ....  575 

387.  Practice  on  Removals  of  Suits  containing  Controversies  between 

Citizens  of  the  same  State  claiming  Land  under  Grants  of 

different  States 580 

388.  Practice  on  Removal  of   Suits  against   Revenue  Officers,  and 

Officers  of  either  House  of  Congress 580 

389.  Practice  on  Removal  of  Cases  arising  under  Civil  Rights  Laws  582 

390.  Filing  of  Record 583 

391.  Practice  after  Removal 585 

392.  Effect  of  Removal 588 

393.  Remand 589 


CHAPTER    XXX. 

WRITS    OF    ERROR    AND    APPEALS. 

394.  Writs  of  Error  and  Appeals  to  the  Supreme  Court  of  the  United 

States 591 

395.  Value  of  Matter  in  Dispute 594 

396.  Certificate  of  Division  of  Opinion 597 

397.  Right  to  Appeal  or  bring  Error 598 

398.  Time  within  which  Appeal  or  Writ  of  Error  must  be  taken  .     .  601 

399.  Writ  of  Error 602 


XX 


TABLE   OF   CONTENTS. 


§  400.     Security  on  Writ  of  Error  or  Appeal 604 

401.  Appeals 605 

402.  Supersedeas 600 

403.  Return  to  Writ  of  Error  or  Appeal 607 

404.  Review  of  Judgments  aud  Decrees  of  District  Courts  by  Circuit 

Courts 610 

405.  Writs  of  Error  from  Supreme  Court  to  State  Courts    .     .     .     .  612 

406.  Motions  to  Dismiss  Appeals  or  Writs  of  Error 61 G 

407.  Printing  the  Record 617 

408.  Argument  of  Appeals  and  Writs  of  Error  in  Supreme  Court   .  .  619 

409.  Decision  of  Appeals  and  Writs  of  Error  by  Supreme  Court  .     .  623 


APPENDIX. 


FORMS. 

Form  I.     Bill  in  Equity 625 

II.     Praecipe  for  Subpoena  ad  Respondendum 630 

III.  Subpoena 630 

IV.  Praecipe  for  Appearance       • 631 

V.     Demurrer 631 

VI.     Plea 632 

VII.     Answer 633 

VIII.     Disclaimer 636 

IX.     Replication        636 

X.     Bill  of  Revivor 637 

XI.     Notice  of  taking  Testimony 640 

XII.     Master's  Warrant  or  Summons 641 

XIII.  Notice  accompanying  Draft  of  Master's  Report 642 

XIV.  Writ  of  Ne  Exeat 642 

XV.     Writ  of  Habeas  Corpus 643 

XVI.  Petition  for  Removal  from  a  State  Court  to  a  Circuit  Court  of 

the  United  States 644 

XVII.     Bond  on  Removal 645 

XVIII.     Final  Record  in  Equity 646 

XIX.     Appeal  and  Allowance 647 

XX.     Citation  on  Appeal 648 

XXI.     Supersedeas  Bond 648 

XXII.     Writ  of  Error  to  Federal  Court 649 

XXIII.  Writ  of  Error  to  State  Court 650 

XXIV.  Assignment  of  Errors 651 

XXV.     Praecipe  for  Appearance  in  Supreme  Court 652 


TABLE   OF   CONTENTS.  XXI 

II. 

RECENT    IMPORTANT    STATUTES. 

Page 

Judiciary  Act  of  1875  as  amended  in  1887  and  1888 653 

Act  to  provide  for  Writs  of  Error  or  Appeal  to  the  Supreme  Court  in 

Cases  involving  a  Question  of  Jurisdiction 658 

Act  to  provide  for  bringing  Suits  against  the  Governmeut  of  the  United 

States       658 

III. 

Rules  of  Practice  in  Equity 664 

IV. 
Supreme  Court  Rules 687 


INDEX 705 


TABLE  OF  CASES. 


[references  are  to  pages.] 


A. 

Abbot  v.  Amer.  Hard  Rubber   Co., 

4  Blatchf.  489  97 

Abbotsford,  The,  98  U.  S.  440  591 

Abbott  v.  Curtis  &  Co.  Manuf.  Co., 

25  Fed.  R.  402  556 

Abergavenny  (Earl  of)  v.  Powell,  1 

Meriv.  434  416 

Abernethy  v.  Hutchinson,  3  L.J.  Ch. 

209  297 

Ableman  v.  Booth,  21  How.  506  544,  545 
Abraham  v.  North  German  F.  I.  Co., 


28,  156 
Hall,  106 

610,  616 

3 

497 

215 

24 

217 


37  Fed.  R.  731 
Acklev  School  District  v 

U.  S.  428 
Adair  v.  Brimmer,  74  N.  Y.  539 

v.  Shaw,  1  Sch.  &  Lef.  243 

Adams  v.  Adams,  21  Wall.  185 
(.•.  Board  of  Comm'rs,  McCalion 

(Kan.),  235 
v.  Bridgewater  Iron  Co.,  6  Fed. 

R.  179 

v. ,  26  Fed.  R.  324  14,  15 

v.  Crittenden,  17  Fed.  R,  42   326,  340 

v. ,  106  U.  S.  576  596 

v.  Howard,  21  Off.  Gaz.  264;  9 

Fed.  R.  347  173,  436 
v.  Kehlor  Milling  Co.,  36  Fed. 

R.  212 

v.  St.  Leger,  1  Rail  &  B.  182 

v.  Spangler,  17  Fed.  R.  133 

v.  Woods,  8  Cal.  306 

Adams  County  v.  Burlington  &  Mo. 

R.  R.  Co.,  112  U.  S.  123 
Adams  Express  Co.  v.  Denver  &  R. 

G.  R.  R.  Co.,  16  Fed.  R.  712  25,  272 
Adamson  v.  Hall,  1  Turn.  &  R.  258  439 
Adderley  v.  Dixon,  1  Sim.  &  S.  607     300, 

319 
Addison  v.  Lewis,  75  Va.  701  350,  351 
Agar  v.  Fairfax,  17  Ves.  533  471 
v.  Regents'  Canal  Co.,  1  Swanst. 

250  309 

Agawam  Co.  v.  Jordan,  7  Wall.  583 

213,  214,  215,  216 
Ager  v.  Murray,  105  U.  S.  126  14 
Ainslie  v.  Sims,  17  Beav.  174  434 
Akers  v.  Akers,  117  U.  S.  197  573 
Alabama  v.  Oeorgia,  23  How.  505  77 
v.  Wolff e,  18  Fed.  R.  836                26 


136 

86 

559 

384 

615 


Alabama  G.  L.  I.  Co.  v.  Nichols,  109 

U.  S.  232  595 

Alabama  &  C.  R.  R.  Co.  v.  Jones,  5 
N.  B.  R.  97  343 

v. ,  7  N.  B.  R.  145  386,  387 

Alaska,  The,  130  U.  S.  201  6iU 

Albany  v.  Steam  Trap  Co.,  26  Fed. 

R.  318  514 

Albrech  v.   Sussman,   2    Ves.    &   B. 

323  191 

Albright  v.  Teas,  106  U.  S.  613  25 

Aldrich  v.  Aetna  Co.,  8  Wall.  491         614 

v.  Cooper,  8  Ves.  394  4 

Aldridge  v.  Mesner,  6  Ves.  418  145 

Alexanders.  Esten,  1  Caines  (N.  Y.), 

152  284 

Alkan    v.  Bean,  23   Int.   Rev.    Rec. 

351  322 

Allan  v.  Houlden,  6  Beav.  148  85 

Allen,  Matter  of,  13  Blatchf.  271  507 

v.  Allen,  Hempst.  58  254 

v.  Blunt,  1  Blatchf.  480  151,  474 

v.  ,  3  Story,  742  451,  453 

v. ,  2  Woodb.  &  M.  121  425,  426 

v.  Coffman,  1  Bibb  (Ky.),  469      137 

v.  Dallas    &    W.  R.    R.    Co.,   3 

Woods,  316  343,  345,  363,  378,  387 

v.  Fairbanks,  40  Fed.  R.  188  553,554 

v.  Galloway,  30  Fed.  R.  466  3 

r.    Mayor,    &c.     of    N.     Y.,    18 

Blatchf.  239  ;  7  Fed.  R.  483      224,  261, 
270,436,444 

i'.  O'Donald,  23  Fed.  R.  573  115 

v. ,  28  Fed.  R.  17  218 

v.  Ryerson,  2  Dill.  501  573 

v.  Wilson,  21  Fed.  R.  881  165 

Alley  v.  Nott,  111  IT.  S.  472  579 

Allfrey  v.  Allfrey,  1  Macn.  &  G.  87      516 
Allin,  In  re,  8  Fed.  R.  753  384 

Allis  v.  Stowell,  5  Fed.  R.  203  232 

v. ,  16  Fed.  R.  783  305 

Alsop  (--.Commercial  Ins.  Co.,  1  Sum- 
ner, 451  431 
Ambler  v.  Choteau,  107  U.  S.  586  17,  172 
American  Bell  Tel.  Co.  v.  Southern 

Tel.  Co.,  34  Fed.  R.  803  129,  130 

American  Bible    Soc.  v.  Price,    110 

U.  S.  61  99 

American  C.  B.  Co.  v.  Ligowski  C.  P. 

Co.,  31  Fed.  R.  466  250 

American  D.  D.  Co.  v.  Sullivan  Ma- 
chine Co.,  32  Fed.  R.  552  494,  495 


XXIV 


TABLE   OF   CASES. 
[References  are  to  pages.] 


American   D.  R.   B.  Co.  v.  Rutland 

Marble  Co.,  2  Fed.  R.  355  313 

v. ,  2  Fed.  R.  356  15,  838 

v.  Sheldon,  17  Blatchf.  208;  4 

Bann.  &  A.  551  190 

v. ,  1  Fed.  R.  870  15 

>:. ,  28  Fed.  R.  217    477,  481,  483 

American    M.    P.    Co.    v.    Vail,    15 

Blatchf.  313  312 

American  N.  P.  Co.  v.  City  of  Eliza- 
beth, 4  Fisher  Pat.  Cas.  189  312 
American    Saddle    Co.    v.    Hogg,  1 

Holmes,  133;  6  Fisher  Pat.  Cas. 

67  214 

American  Union   Tel.  Co.  v.   Union 

Pac.  Ry.  Co.,  1  McCra.  188  333 

American   Zylonite   Co.  v.  Celluloid 

Manuf.  Co.,  32  Fed.  R.  800  434 

Ames  v.  Birkenhead  Docks,  20  Beav. 

332  380 
v.  Chicago,  S.  F.  &  C.  Ry.  Co., 

39  Fed.  R.  881  571 
v.  Colorado  Cent.  R.  R.  Co., 

Dill.  251 

v.  Hager,  36  Fed.  R.  120 

v.  Kansas,  111  U.  S.  440 

Amory  v.  Amory,  95  U.  S.  186 

v.  Broderick,  Jacob,  530 

v.  Lawrence,  3  Cliff  523 

Amsinck  v.  Barklav,  8  Ves.  594 
Amy  w.  Dubuque,  98  U.  S.  470 
v.  Manning,  38  Fed.  R.  536 


567 
22 
5,64 
573 
440 
171 
394 

io 

577, 
578 
578 


131.  17 


v. ,  38  Fed.  R.  868 

v.  Shelby  County,  1   Flipp.  104 

485,  486 

v.   Watertown,   130   U.   S.   301 

530,  532,  561 
Anderson   v.   Appleton,   32   Fed.   R. 

571,  584,  590 
v.  Jacksonville,  P.  &  M    R.  R. 

Co.,  2  Woods,  628  290 

v.  Lewis,  3  Bro.  C.  C.  429  156 

v.  Moe,  1  Abb.  (U.  S.)  290  492 

v.  Santa  Anna,  116  U.  S.  356        558 

Andes  v.  Slauson,  130  U.  S.  435  555 

Andrae  v.  Redfield,  12  Blatchf.  407      564 
Andrews  v.  Cole,  20  Fed.  R.  410    167,  4S2 

v.  Smith,  5  Fed.  R.  833  12 

v.  Spear,  4  Dill.  470  551 

Angel  v.  Smith,  9  Ves.  335    328,  371,  510 
Angell  v.  Angel!,  1  Sim.  &  S.  83  414 

v.  Davis,  4  Mvl.  &  C.  360  498 

v.  Draper,  1  Vern.  399  4 

v.  Hadden,  16  Ves.  202  145 

v.  Westcombe,  6  Sim.  30  417 

Angurstein  v.  Clarke,  1  Ves.  Jr.  250   151, 
8  241 

Angier  v.  May,  3  W.  R.  330  336 

Anonymous,  Ambl.  237;  2  Ves.  Sen. 

407  415 

1  Ask.  18  469 

lAtk.  521  390 

1  Atk.  578  344,  376 

2  Atk.  14  478 


Anonvmous,  2  Atk.  113 

3  Atk.  530 

3  Atk.  809 

1  Barb.  Ch.  (X.  Y.) 

5  Blatchf  134 

1  Chan.  Cas.  269 

2  Chan.  Cas.  164 

2Eq.  Cas.  Abr.  166 

4  Hill  (X.  Y.),  507 

2  Jac.  &  W.  553 

1  Johns.  (X.  Y.)  143 

2  Madd.  395 

6  Madd.  10 

12  Mod.  522 

2  P.  Wms.  68 

2  P.  Wms.  283 

1  Vern.  104 

1  Vern.  117 

1  Vern.  351 

1  Ves.  Jr.  93 

1  Ves.  Jr.  409 

5  Ves.  656 

9  Ves.  512 

2  Ves.  Sen.  520 


73 


327 
186 
199 
412 
491 
91,  121 
175 
103 
407 
223 
283 
440 
306 
85 
451 

520,  522 

439 

82 

146,  255 
306 
65,  289 
284 
107 
328 


v.   Bridgewater    Canal    Co.,    9 

Sim.  378  327 

v.  Christopher,  11  Sim.  409  400 

r.  Gwillim,  6  Ves.  285  223 

v.  Harrison,  4  Matld.  252  218 

v.  Jolland,  8  Ves.  72  380 

v.  Lake,  6  Ves.  171  223 

Anthonv  r.  Carroll,  2  Ban.  &  A.  Pat. 

Cas.  195  10 
v.  Louisville  &  N.  R.  R.  Co.  132 

U.  S.  172  560 

Antoni  v.  Greenhow,  107  U.  S.  769      323 
Apthorp  v.  Comstock,  2  Paige  (N.  Y.), 

482  448, 450 

Archbishop  of  York  v.  Stapleton,  2 

Atk. 136  241 

Archer  v.  Hartford  F.  I.  Co.,  31  Fed. 

R.  060  483 

v.  Preston,  1  Eq.  Cas.  Abr.  133        2 

Areot  (Xabob  of)  v.  East  India  Co., 

3  Bro.  C.  C.  292  202 

Arglasse  v.  Musehamp,  1  Vern.  75  2,  468 

v. ,  1  Vern.  135  2 

Argo,  The,  2  Gall.  314  425 

Armstrong   v.   Armstrong,  L.  R.  12 

Eq.  614  360 

v.  Brown,  1  Wash.  43  429 

v.  Chemical  Xat.  Bank,  37  Fed. 

R.  466  217 

v.  Ettlesohn,  36  Fed.  R.  209    21,  22, 

24,  25 
99,  212 
434 


v.  Lear,  8  Pet.  52 

r.  Storer,  9  Beav.  277 

v.  Trautmann,  36  Fed.  R.  275     21, 

22,25 
v.  Treasurer  of  Athens  Co.,  16 

Pet.  281  615 

Arnold  v.  Chesebrough,   35  Fed.  R. 

16  423 

v.  Kearney.  29  Fed.  R.  820  589 

v.  Kempstead,  1  Amb.  466  4 


TABLE    OF   CASES. 
[References  are  to  pages.] 


XXV 


Arnoux    v.    Steinbrennor,    1    Paige  ' 

(N.  Y.),  82  369,  434 

Arrowsmith  v.  Gleason,  129  U.  S.  86     29 
Arundell  (Lady)   v.  Phipps,  10  Ves. 

139  306 

Asbee  v.  Shipley,  Madd.  &  Geld.  296    277 
Ashburnham   v.   Thompson,  13  Ves. 

402  478 

Askew  v.  Poulterers'  Co.,  2  Ves.  Sen. 
89  340 

v.  Townsend,  2  Dick.  471  258 

Aston  v.  Heron,  2  M.  &  K.  390  376 

Atchison  v.  Morris,  11  Fed.  R.  582        161 
Atherton  v.  Fowler,  91   U.  S.  143     602, 

614,  615 
Atkins  v.  Dick,  14  Pet.  114  97 

v.  Petersburg  R.  R.  Co.,  3  Hughes, 

307  350 

v.  Wabash,  St  L.,  &  P.  R.  R.  Co., 

29  Fed.  R.  161  12,  347,  379,  380, 

381,  385,  386,  387 
Atkinson  v.  Glenn,  4  Cranch  C.   C. 
134  425,  430 

v.  Hanway,  1  Cox  Eq.  360  241 

Atlantic,  The,  Abb.  Adm.  451  401 

Atlantic  G.  P.  Co.  v.  Dittman  P.  M. 

Co.,  9  Fed.  R.  316  504 

Atlantic   Works  v.  Brady,  107  U.  S. 

192  214 

Atlantic  &  P.  Tel.  Co.  v.  Union  Pac. 
Ry.  Co.,  1  Fed.  R.  745 ;  1  McCra. 
541  °33 

Atterbury  v.  Gill,  13  Off.  Gaz.  276      256, 

206 
Attleborough   Nat.    Bank    v.    North- 
western M.  &  C.  Co.,  28  Fed.  R.  113      11 
Attorney-General  v.   Bank  of  Colum- 
bia, 1  Paige  (N.  Y.),  511  379,  380 

v.  Birmingham  &  O.  J.  Ry.  Co., 

15  Jur.  1024  299 

v.  Brewers'  Co.,  1  P.  Wins.  376    478 

v.  Brooke,  18  Ves.  319  515 

v.  Brown,  1  Swanst.  265  182 

v.  Burch,  4  Madd.  178  418 

v.  Butler,  123  Mass.  306  109 

v.  City  of  London,  1  Ves.  Jr.  243 ; 

3  Bro.  C.  C.  171  496 

v.  Clapham,  4  De  G.  M.  &  G. 

591  475 

v.  Cleaver,  18  Ves.  211  304 

v.  Corporation    of    London,     12 

Beav.  8  177 
v.  Corporation  of  Poole,  4  M.  & 

C.  17  122 

v.  Day,  2  Madd.  246  380 

v.  Foster,  2  Hare,  81  273,  277 

/•.  Gee,  2  Ves.  &  B.  208  380 

w.  Goddard,  1  Turn.  &  R.  348        103 

v.  Great  Northern  Ry.  Co.,  1  Dr. 

&  Sin.  151  298,  299 

v.  Greenhill,  34  Beav.  174  51  1 

>■.  Guardian  Mat.  L.  I.  Co.,  77 

N.  Y.  272  370 

v.  Hamilton,  1  Madd.  214  471 

v.  Hewit,  Cooper's  Eq.  PI.  319      216 


Attorney-General  v.  Jackson,  11  Ves. 

365     '  92,  181,  196 

v.  Jeanes,  1  Atk.  355  137 

v.  Johnson,  2  J.  Wils.  87  :s\* 

v.  Lambirth,  5  Price,  386  219 

v.  Manchester  &  L.  Ry.  Co.,   1 

Ry.  Cas.  (Eng.)  436  339 

v.  Marsh,  16  Sim.  572  338 

v.  Mayor  of  Gal  way.  1  Moll.  95    377 

v.  Montgomery,  2  Atk.  378  452 

v.  Newcombe,  14  Ves.  1  239 

v.  Nichol,  16  Ves.  338  307 

v.  North  American  L.  I.  Co.,  89 

X.  Y.  94  373,  384 

v.  Parkhurst,  1  Chan.  Cas.  112       67 

v.  Pearson,  7  Sim.  290  102,  397 

v.  Railroad  Cos.,  35  Wis.  425        298 

v.  Richards,  2  Anstr.  603  308 

v.  Rumford    Chetn.     Works,    2 

Ban.  &  A.  Pat.  Cas.  298  12 

v.  Shelly,  1  Salk.  162  92 

v.  Tiler,  1  Dick.  378  67 

v.  Utica  Ins.  Co.,  2  Johns.   Ch. 

(X.  Y.)  371  298 

v.  Vigor,  11  Ves.  563  359 

v.  Whorwood,  1  Ves.  Sen.  534       136 

v.  Worcester  Corporation,  1  C. 

P.  Cooper,  18  221 

v.  Wright,  3  Beav.  447  284 

v.  Wyburgh,  1  P.  Wms.  599;  2 

Eq.  Cas.  Abr.  167  92 

v.  Wynne,  Moseley,  126  85 

Atwill  v.  Ferrett,  2  Blatchf.  39     133,  136, 

140,   173,  174,  176,  177,  178,  179,   180, 

186,  218,  219,  242 

Atwood  v.  Hawkins,  Rep.  t.  Finch  113     85 

Austin  v.  Austin,  11  Jur.  X.  S.  536       475 

v.  Chambers,  6  CI.  &  Fin.  38  117 

v.  Gagan,  39  Fed.  R.  626        573,  588 

Austria  (Emperor  of)  v.  Dav,   2  Giff. 

628 ;  3  De  G.  F.  &  J.  217  "    321,  478 

Ayers,  In  re,  123  U.  S.  443   72,  77,  99, 

323,542,  544 

v.  Watson,  113  U.  S.  594       571,  587 

Ayliffe  v.  Murray,  2  Atk.  58  408 

Avium  v.  Bray,  2  Y.  &  J.  518,  n.  187 

Ayres  v.  Carver,  17  How.  591     90,  91,  92, 

216.  248,250,253 

t\  Wiswall,  112  U.  S.  187      84,  668, 

570,  571 


B. 


Bacon  v.  Bronson,  7  Johns.  Ch.  (N.  Y.) 

194  3 

v.  Hart,  1  Black,  38  604 

v.  Jones,  4  M.  &  Cr.  433         327,  310 

v.  Magee,  7  Cow.  (N.  Y.)  515  406 

v.  Xorthwestern  Mut.  L.  I.  Co., 

131  IT.  S.  258  658 

v.  Pi  ves,  106  U.  S.  99  96 

v.  Robertson,  18  I  low.  480  89 

v.  Spottiswoode,  1  Beav.  3S2  340 


XXVI 


TABLE   OF   CASES. 
[References  are   to  pages.] 


Badeau  v.  Rogers,  2  Paige  (N.  Y.), 

209  143,  145, 

Badger  v.  Badger,  2  Wall.  87         133, 

v. ,  1  Cliff.  241 

Bagley  v.  Yates,  3  McL.  465         502, 
Bagshaw  v.  Eastern   Union  Ry.  Co., 

2  Macn.  &  G.  389 
Bailey  v.  Birkenliead,  L.  &  C.  J.  Ry. 

Co.,  12  Beav.  433 

v.  Sewell,  1  Kuss.  239 

v.  Wright,  2  Bond,  181  198, 

Bailey    W.    M.    Co.   v.    Young,    12 

Blatchf.  199  183,  222,  224, 

Baily  v.  Lambert,  5  Hare,  178 

i'.  Taylor,  1  Russ.  &  M.  73 

Bain,  Ex  parte,  121  U.  S.  1 
Bainbridge  v.  Burton,  2  Beav.  539 
Bainbrigge  v.  Blair,  3  Beav.  421 
Baines  v.  Baker,  Anibl.  158 
Baird    v.    Shore    Line    Ry.    Co.,    6 

Blatchf.  461 
Baker  v.  Backus,  32  111.  79  379, 

v.  Biddle,  Baldw.  394  14, 

v.  llaily,  2  Dick.  632 

v.  Hart,  3  Atk.  542 

v.  Mellish,  11  Ves.  70    173,  182, 


480 
175 
199 
5U4 

299 

171 

448 
203 

244 

435 
340 

543 

89 

387 

308 

338 
380 
445 
392 
453 
186, 
242 
3 
91 

160 
516 

448 
478 
274 
290 


v.  Morton,  12  Wall.  150 

v.  Rogers,  Sel.  Cas.  Ch.  74 

v.    Wales,    14    Abb.    Pr.    n.   s. 

(N.  Y.)  331 

v.  Whiting,  1  Story,  218 

Balch  v.  Tucker,  2  Ch.  Cas.  40 
Baldwin  v.  Ely,  9  How   580 

v.  Mackown,  3  Atk.  817         272, 

Ballard  v.  Catling,  2  Keen,  606 
Baltimore  Car  Wheel  Co.  v.  Bemis, 

29  Fed.  R.  95  17,  324 

Baltimore  &  O.  R.  R.  Co.,  Ex  parte, 

108  U.  S.  566  534 

v.  Ford,  35  Fed.  R.  170  590 

v.  Hamilton,  16  Fed.  R.  181  530 

Bampton  v.  Birchall,  5  Beav.  330  268 

v. ,  1  Phill.  568  268 

Bancroft  v.  Warden,  2  Dick.  672  241 

v.  Wentworth,  10  Ves.  285,  n.       226 

Bank  v.  Carrollton  R.R.,  11  Wall.  624 

99,  175 

v.  McLeod,  38  Ohio  St.  174  370 

Bank    of    Alexandria    v.    Young,    1 

Cranch  C.  C.  458  551 

Bank  of  Columbia  v.  Sweeny,  1  Pet. 

567  535 

Bank  of  Danville  v.  Travers,  4  Biss. 

507  427 

Bank  of  Kentucky  v.  Adams  Exp.  Co., 

93  U.  S.  714  557 

Bank  of  Montreal  v.  Thayer,  7  Fed.  R. 

622  367,  376 

Bank  of  N.  Y.  v.  Skelton,  2  Blatchf. 

14  303 

Bank  of  S.  C.  v.  Rose,  1  Rich.  Eq. 

(S.  C).  292  434 
Bank  of  U.  S.  v.  Beverlv,  1  How.  134  4 
v.  Daniel,  12  Pet.  32  595 


536 
379 


377 
340 


407 
526 


584 
429 


Bank  of  U.  S.  v.  Green,  6  Pet.  26  597 

v.  Kurtz,  2  Cranch  C.  C.  342         553 

v.  Ritchie,  8  Pet.  128  78,  525 

v.  White,  8  Pet.  262  165,  523 

Banks  v.  Miller,  1  Cranch  C.  C.  543      424 
Banque  Franco-Egyptienne  v.  Brown, 

24  Fed.  R.  106    "  247 

Barber  v.  Barber,  21  How.  582  14 

Barclay  v.  Brown,  7  Paige  (N.  Y.),  245  474 
Barker  v.  Dixie,  Rep.  t.  Hardw.  252      396 

v.  Dumaresque,  2  Atk.  119  439 

v.  Ray,  2  Russ.  63  452 

v.  Smark,  3  Beav.  64  439 

v.  Todd,  15  Fed.  R.  265         288,  291 

Barkley  v.  Levee  Comm'rs,  93  U.  S. 

258 
Barlow  v.  Gains,  8  Beav.  329 
Barnard  v.  Darling,  1  Barb.  Ch.  (N.Y.) 

76 

v.  Gibson,  7  How.  650 

v.  Heydrick,  49  Barb.  (N  Y.)  62; 

2  Abb.  Pr.  n.  s.  (N.  Y.),47 
Barnesle  v.  Powell,  1  Ves.  Sen.  120 
Barnesville  &  M.  R.R.  Co.,  Matter  of, 

2  McCra.  216 
Barnet  v.  Dav,  3  Wash.  423 
Barney  v.  Baltimore  City,  6  Wall.  280 

100,  104 

v.  Globe  Bank,  5  Blatchf.  107         33 

v.  Latham,  103  U.  S.  205        26,  104, 

126,  127,  568,  572 
v.  Luckett,  1  Sim.  &  S.  420  326 

v.  Mayor,  &c,  of  Baltimore,  1 

Hughes,  118 

v.  Schmeider,  9  Wall.  248 

Barns  v.  Omally,  4  McL.  576 
Barrel  v.  Transportation  Co.,  3  Wall, 

424 
Barrell  v.  Simonton,  3  Cranch  C.  C 

681 
Barron  v.  Burnside,  121  U.  S.  186 
Barrow  r.  Hill,  13  How.  54 

v.  Hunton,  99  U.  S.  80  11,  28,  524,  527 

Barry,  Ex  parte,  2  How.  65  541,  544 

v.  Edmunds,  116  U.  S.  550       23,  24, 

437,  438 
v.  Mercein,  5  How.  103  544,  595 

v.  Mutual   L.  I.  Co.,  53  N.  Y. 

536  143 

Bartle  v.  Coleman,  3  Cranch,  283  99 

Bartlett  v.  Sultan  of  Turkey,  19  Fed. 

R.  340  156 

v.  Wood,  9  W.  R.  817  474 

Barton  v.  Barbour,  104  U.  S.  126  68,  192, 
356,  357,  358,  366,  375,  376 
Bas  v.  Steele,  3  Wash.  381  553 

Basey  v.  Gallagher,  20  Wall.  670  451 

Bassett  v.  Johnson,  1  Green  Ch.  (N. 

J.),  154  451 

Bate  Refrigerating  Co.  v.  Gillett,  30 

Fed.  R.  683  504 

v.  Gillette,  28  Fed.  R,  673    457,  458, 

461 
Bates  v.  Clark,  95  U.  S.  204  73 
v.  Coe,  98  U.  S.  31                 213,  214 


26 

398 
478 

605 

425 

570 
624 


TABLE    OF   CASES. 
[References  are   to  pages.] 


XXV11 


Batesville  Inst.  v.  Kauff  man,  18  Wall. 

151  84,  97 

Bath  (Earl  of)  v.  Sherwin,  4  Bro.  P.  C. 

373  4,  301 

Bath  County  v.  Amy,  13  Wall.  244  536 
Battaile  v.  Fisher,  36  Miss.  321  373 

Battle  v.  Mutual  L.  I.  Co.,  10  Blatchf. 

417  238 

Bawtree  v.  Watson,  3  M.  &  K.  339  102 
Bax  v.  Whitbread,  16  Ves.  15  474 

Bayerque  v.  Cohen,  McAll.  113  184,  327 
Bayley  v.  De  Walkiers,  10  Ves.  441  223 
Bayliss  v.  Lafayette,  M.  &  B.  Ry.  Co., 

8  Biss.  193  291 

Beadleston  v.  Harpending,  32  Fed.  It. 

644  590 

Beale  v.  Thompson,  8  Cranch,  70  426 

Bean  v.  Clark,  30  Fed.  It.  225  210 

v.  Smith,  2  Mason,  252  33 

Bearblock  v.  Tyler,  1  Jac.  &  W.  225  450 
Beard  v.  Bowler,  2  Bond,  13  206 

Beardsley  v.  Littell,  14  Blatchf.  102    395, 

552 
Beauchamp  v.  Marquis  of  Huntley, 

Jacob,  516  194 

Beaufort  (Uuke  of)  v.  Morris,  2  Phill. 
683  450 

v.  Neeld,  12  CI.  &  Fin.  248  ^  3 

Beaumont  v.  Boultbee,  5  Ves.  485  137 
Beavan  v.  Carpenter,  11  Sim.  22  415 

Bechtel   v.  United  States,  101  U.  S. 

597  399 

Beckwith  v.  Easton,  4  Ben.  357  492 

Beddoes  v.  Pugh,  26  Beav.  407  247 

Bedford  (Duke  of)  v.  British  Museum, 

2  M.  &  K.  552  301 

Beebe  v.  Russell,  19  How.  283  467 

Beebees,  Ex  parte,  2  Wall.  Jr.  127  412 
Beecher  v.  Bininger,  7  Blatchf.  170  346 
Beede  v.  Cheeney,  5  Fed.  R.  388  588 

Beedle  v.  Bennett,  122  U.  S.  71  15 

Beekman  v.  Peck,  3  Johns,  Ch.  (N.  Y.) 

415  514 

Beer  Co.  v.  Massachusetts,  97  U.  S. 

25  615 

Beers  v.  Chelsea  Bank,  4  Edw.  (N.  Y.) 
277  386 

r.  Wabash,  St.  L.  &  P.  Ry.  Co. 

34  Fed.  It.  244  373 

Behrens  v.    Sieveking,  2   M.  &   Cr. 

602  194 

Bein  v.  Heath,  6  How.  228  65 

v. ,  12  How.  108  8,  9,  339 

Belden  v.  Devoe,  12  Wend.  (N.  Y.), 

223 
Bell  v.  Chapman,  10  Johns.  183 

v.  Cureton,  2  M.  &  K.  503 

v.  Davidson,  3  Wash.  328 

v.  Donohoe,  17  Fed.  R.  710 


Belloat   v.   Morse,  2   Hayw.  (N.  C.) 

157 
Benner  v.  Porter,  9  How.  235 
Bennet  v.  Going,  1  Moll.  529 

v.  Vade,  2  Atk.  325 

Bennett  v.  Attkins,  1  Y.  &  C.  247 

v.  Bennett,  Deady,  299 

v.  Butterworth,  11  How.  669 

v.  Colley,  2  M.  &  K.  225;  5  Sim, 

181 

v.  Hamill,  2  Sch.  &  Lef.  566 

471,  526 

v.  Hoefner,  17  Blatchf.  311 

v.  Honywood,  Amb.  708 

v.  Neale,  Wightwick,  324 

Benson  v.  Hadfield,  4  Hare,  32 


240 

567 
497 
118 
478 
544 


343 


169 

90 

212,  448 

126,  192, 

193 

544 

340 

109 

550 


v.  McMahon,  127  U.  S.  457 

Bentley  v.  Joslin,  Hempst,  218 
Benton  v.  Woolsey,  12  Pet.  27 
Bergen,  In  re,  2  Hughes,  513 
Bernards  Township  v.  Stebbins,  109 

U.  S.  341  13,  438 

Berney  v.  Sewell,  1  Jac.  &  W.  647        343 
Bernheim   v.  Birnbaum,  30   Fed.  R. 

24,  34 
456 
218,  396 
100,  262, 
266 
434 
438 


885 
Bernie  v.  Vandever,  16  Ark.  616 
Berry  v.  Sawyer,  19  Fed.  R.  286 
Bettes  v.  Dana,  2  Sumner,  383 


—  v.  Morrison,  1  Pet.  351 

—  v.  Nimmon,  4  McL.  539 

—  v.  Noonan,  19  Fed.  R.  225 

—  v.  United  States  Stamping  Co., 
32  Fed.  R.  549 


407 

64 

121 

430 

96,  98, 

99,  100 

424,  558 

425 

579 


4G0 


Betts  v.  Barton,  3  Jur.  n.  s.  154 

i\  Lewis,  19  How.  72 

Bickett  v.  Morris,  L.  R.  1  H.  L.  Sc.  47  324 
Bickford  v.  Skewes,  8  Sim.  206  408 

Bief  v.  Dyer,  Chan.  Cal.  XI.  3 

Bigelow,  Ex  parte,  113  U.  S.  328  542,  543 
Bigler  v.  Waller,  12  Wall.  142  603,  604 
Bismold  v.  Audland,  11  Sim.  23  142,  144 
Billing  v.  Flight,  1  Madd.  230  202 

Bills  v.  New  Orleans,  St.  L.  &  C.  R.  R. 

Co.,  13  Blatchf.  227 
Bingham  v.  Cabot,  3  Dall.  382 
Bininger,  Re,  7  Blatchf.  159 
Birch,  Re,  Shelf,  on  Lun.  146 

v.  Corbin,  1  Cox  Eq.  144 

Birdsall  v.  Perego,  5  Blatchf.  251 
Birdsell  v.  Hagerstown  A.  I.  M.  Co., 

1  Hughes,  64 
Birdseye  v.  Heilner,  26  Fed.  R.  147 

v.  Shaeffer,  37  Fed.  R.  821    579,  588 

Birdsong  v.  Birdsong,  2  Head  (Tenn.), 

289 
Birkenhead  Docks  v.  Laird,  4  De  G. 

M.  &  G.  732 
Bischoff  v.  Wetherell,  9  Wall.  812 
Bischoffsheim  v.  Balfzer,  20  Fed.  R. 
890 

v.  Brown,  29  Fed.  R.  341 

Bishop  v.  Willis,  2  Ves.  Sen.  113 
Bishop  of  Winchester  v.  Fournier,  2 

Ves.  Sen.  445  448,  476 

Black  v.  Lamb,  1  Beas.  (N.  J.)  108    447 

v.  Thorne,  10  Blatchf.  66        32,  212, 

437,  468 
Blackburn  v.  Crawfords,  3  Wall.  175   431 


585 
113 
533 
344 
143 
240 

305 
210 


291 

475 

199 

15 

552 

294 


XXV111 


TABLE    OF   CASES. 
[References  are  to  pages.] 


Blackburn  v.  Selma,  M.  &  M.  R.  11. 

Co.,  2  Flipp.  525  161,  190,  191,  192 

Blain  v.  Home  Ins.  Co.,  30  Fed.  R. 

607  486 

Blair  v.  St.  Louis,  H.  &  K.  Ry.  Co., 

19  Fed.  H.  861  354 

v. ,  20  Fed.  R.  348  373 

v. ,  22  Fed.  R.  471   349,  350,  354 

v. ,  23  Fed.  R.  521  351 

v. ,  23  Fed.  R.  523  351 

v. ,  23  Fed.  R.  524  352 

v. ,  23  Fed.  R.  704  353 

v.  Turtle,  5  Fed.  R.  394;  23  Alb. 

L.  J.  435  160 

Blake  u.  Blake,  18  W.  R.  944  468 

v.    Greenwood    Cemetery,    14 

Blatchf.  342  324 

v.  Hawkins,  19  Fed.  R.  204  486,  488 

v.  McKim,  103  U.  S.  336  26 

Blakely  v.  Biscoe,  Hempst.  114  14 

Blakemore  v.  Glamorganshire  Canal 

Nav.,  1  M.  &  K.  154  298,  300 

Blakeney  v.  Dufaur,  15  Beav.  40  380,  381 
Blanchard  v,  Cawthorne,  4  Sim.  566    356 

v.  Dwigbt,   12   Wend.   (N.  Y.), 

192  573 

v.  Putnam.  8  Wall.  420  213 

Blandy  v.  Griffith,  6  Fisher  P.  C.  434  521 
Blease  v.  Garlington,  92  U.  S.  1  395,  423 
Bleecker  v.  Bond,  3  Wash.  529  398 

Blight  v.  Fisher,  Pet.  C.  C.  41       412,  504 
Bliss  v.  Brooklyn,  10  Blatchf.  217         499 
Block  v.  Atchison,  T.  &  S.  F.  K.  Co., 
21  Fed.  R.  529  154 

v.  United  States,  7  Ct.  of  CI. 

406  398 

Blodgett  v.  Hobart,  18  Vt.  414  251 

Blois  v.  Betts,  1  Dick.  336  382 

Blomfield  v.  Eyre,  8  Beav.  250  136,  328 
Blondheim  v.  Moore,  11  Md.  365       346, 

378 
Blossom  v.  Railroad  Co.,  3  Wall.  196 

463,  464 
Blow  v.  Taylor,  4  Hen.  &  M.  (Va.) 

159  337 

Blower  v.  Morrets,  3  Atk.  772  258 

Bloxam  v.  Metropolitan  Ry.  Co  ,  L.  R. 

3  Ch   337  299 

Blunt  v.  Clitherow,  0  Ves.  799  359 

Board  of  Commissioners  v.  Gorman, 

19  Wall.  661  500,  563 

Board  of  Education  v.  Scoville,   13 

Kan.  17  143 

Board  of  Liquidation  v.  McComb,  92 

U.  S.  531  74,  98,  323 

Boddy  v.  Kent,  1  Meriv.  361  255,  439 
Bodwell  v.  Crawford,  26  Kan.  292         321 

v.  Willcox,  2  Caines  (N.  Y.),  104    283 

Boehm  v.  Wood,  Turn.  &  R.  332  393 

Bogart  v.  Hinds,  25  Fed.  R.  484  171 

Bollman,    Ex   parte,    4    Cranch,    75 

540,  541,  544,  545 
Bolton  v.  Bolton,  2  Dan.  Ch.  Pr.  (2d 

Am.  Ed.)  468,  n.  242 
v. 2  Sim.  &  S.  371  439 


Boone  v.  Chiles,  10  Pet.  177 
Booth  v.  Booth,  2  Atk.  343 

v.  Clark,  17  How.  322 

v.  Levcester,  1  Keen,  247 

Bootle  v.  Blundell,  19  Ves.  494 


Bolton  v.  Corporation  of  Liverpool,  1 

M.  &  K.  88  177 

v.  Gardner,  3  Paige  (N.  Y.),  273   201 

Bond  v.  Dustin,  112  U.  S.  604  555,  556 
Bondurant  v.  Watson,  103  U.  S.  281  673 
Boogher  v.  Insurance  Co.,  103  U.  S. 

90  555 

Boom  Co.  v.  Patterson,  98  U.  S.  403  565 
Boon  v.  Collingwood,  1  Dick.  115  394 
Boon's  Heirs  v.  Chiles,  8  Pet.  532    84,  95, 

98,99 
201 
439 
68,  370 
434 
398,  450, 
452 

Borland  v.  Haven,  37  Fed.  R.  394  9 

Bors  v.  Preston,  111  U.  S.  252  5,  437 

Bosanquet  v.  Marsham,  4  Sim.  573  241 
Bostock  v.   North   Staffordshire   Ry. 

Co.,  3  Sm.  &  G.  283  298,  299 

Bostwick  v.  Brinkerhoff,  106  U.  S.  3  614 
Bottomley  v.  United  States,  1  Story, 

153  498 

Boudereau  v.  Montgomery,  4  Wash. 

186  428,  429,  431 

Boudinot  v.  Symmes,  Wall.  C.  C.  139    221 
Boult  v.  Blunt,  Cary,  72 
Bourke  v.  Amison,  32  Fed.  R.  710 
Bourne  v.  May  bin,  3  Woods,  724 
Boussmaker,  Ex  parte,  13  Ves.  71 
Bowen  v.  Chase,  94  U.  S.  812 

v. 7  Blatchf.  255 

Bowie  v.  Talbot,  1  Cranch  C.  C.  247 
Bowman  v.  Bell,  14  Sim.  392 

v.  Bowman,  30  Fed.  R.  849 

v.  Chicago  &  N.  W.  Ry.  Co.,  115 

U.  S-  611 

v.  Sheldon,  5  Sandf.  (N.  Y.)  657 

Bowman's    Devisees   v.   Wathen,  2 

McL.  376 
Bowyer  v.  Bright,  13  Price,  316 

v.  Pritchard,  11  Price,  103 

Boyce  v.  Grundv,  3  Pet.  210 

v. 9  Pet.  275 

Boyd,  Ex  parte,  105  U.  S.  647 

v.  Gill,  19  Fed.  R.  145 

v.  Heinzelman,  1  Ves.  &  B.  381 

v.  Mills,  13  Ves.  85 

Boyer  v.  Bover,  113  U.  S.  689 
Boyle  v.  Zacharie,  6  Pet.  648 
Brace  v.  Taylor,  2  Atk.  253 
Bracken  v.  Martin,  3  Yerg.  (Tenn.) 

55 
Bradford   v.  Felder,   2   McCord   Ch. 

(S.  C.)  170 
v.  Union  Bank  of  Tenn.,  13  How. 

57 

v.  Williams,  3  How.  576 

Bradley,  Ex  parte,  7  Wall.  364 

v.  Reed,  2  Pittsb.  (Pa.)  519;  12 

Pittsb.  L.  J.  65  306,  338 
Bradstreet,  Ex  parte,  4  Pet.  102  534,  535 
,  Ex  parte,  6  Pet.  774  534 


324 

152 

384 

64 

20 

578 

425 

377 

14 

23 

407 

126 

274,  515 

145 

4,  13 

624 

6,  562 

570 

440 

225 

171 


175 

440 

240 

247 

26 

535 


TABLE   OF   CASES. 
[References  are   to  pages.] 


XXIX 


Bradstreet,  Ex  parte,  7  Pet.  634 

,  Ex  parte,  8  Pet.  588  534, 

v.  Neptune  Ins.  Co.,  3  Sumner, 

601 
Bradwell    v.   Weeks,    1    Johns.   Ch. 

(N.  Y.)  325 
Bramston  v.  Carter,  2  Sim.  458     151, 
Brande  v.  Gilchrist,  18  Fed.  R.  465 
Brandies  v.  Cochrane,  105  U.  S.  262 
Brandon  v.  Brandon,  5  Madd.  473 
Brandon    Manuf.    Co.   v.    Prime,    14 
Blatchf.  371:   3   Bann.  &  A.   Pat. 
Cas.  191  173,  251, 

Brandreth  v.  Lance,  8  Paige  (N.  Y.), 

24 
Brasher's  Ex'rs  v.  Van  Cortlandt,  2 
Johns.  Ch.  (N.  Y.)  242  79,  141, 

Brassey  v.  New  York  &  N.  E.  R.  R. 
Co.,  19  Fed.  R.  663  18, 

Breeden  v.  Lee,  2  Hughes,  484        17, 
Brewer  v.  Jacobs,  22  Fed.  R.  217 
Brewster  v.  Shuler,  38  Fed.  R.  549 

v.  Wakefield,  22  How.  118 

Bridges  v.  Sheldon,  7  Fed.  R.  17 
Briges  v.  Sperry,  95  U.  S.  401 
Briggs  v.  French,  2  Sumner,  251 

v.  The   Light   Boats,  11  Allen 

(Mass.),  157 
Bri^ham  v.  Luddington,  12  Blatchf. 
237  68,  101,  158, 

Bright  v.  Milwaukee  &  St.  P.  R.  R. 

Co.,  14  Blatchf.  214 
Brigstocke  v.  Roch,  7  Jur.  n.  s.  63 
Brinckerhoff  v.  Brown,  7  Johns.  Ch. 

(N.  Y.)  217 

Brine  v.  Insurance   Co.,  96  U.  S.  627 

9,  443,  473, 

Brinkerhoff  v.  Brown,  6  Johns.  Ch. 

(N.  Y.)  139  123,  182, 

Briscoe   v.  Commonwealth   Bank,   9 

Pet.  85 
Britton  v.  Brewster,  2  Fed.  R.  160 

v.  Hill,  12  C.  E.  Gr.  (N.  J.)  389 

Brobst  v.  Brobst,  4  Wall.  2 

Brockett  v.  Brockett,  2  How.  238     604, 

v. 3  How.  691 

Broderick's  Will,  Case  of,  21   Wall. 
503  9,  10,  18, 

Brodie  v.  Barry,  3  Meriv.  695 

v.  St.  Paul,  1  Ves.  Jr.  326 

Bromley  v.  Smith,  1  Sim.  8 

v.  Town  of  Jeffersonville,  3  McL. 

336 
Bronson  v.  Keokuk,  2  Dill.  498 

v.  La  Crosse  &  M.  R.  R.  Co.,  2 

Wall.  283  252, 

v.  Railroad  Co.,  2  Black,  524    290, 

v.  Schulten,  104  U.  S.  410     561, 

Brook  v.  Evans,  29  L.  J.  Ch.  G16 
Brook  (Lord)  v.  Lord  Hertford,  2  P. 

Wms.  548 
Brooke  v.  Clarke,  1  Swanst  550 
Brooks  v.  Bicknell,  3  McL.  250 

v.  Byam,  1  Story,  296     215,  220, 

v. ,  2  Story,  553  477, 


535    Brooks  v.  Clark,  119  U.  S.  502  571 

535   v.  Farwell,   2  McCra.   220;   4 

Fed.  R.  167  160 

199    v.  Jenkins,  3  McL.  432  4"J7 

v.  Miller,  28  Fed.  R.  615  14,  15 

65    v.  Mills  County,  4  Dill.  524  194 

241    v.  Missouri,  124  U.  S.  394  614 

246    v.  Norris,  11  How.  204  602 

605    v.  O'Hara,  8  Fed.  R.  529 ;  2  Mc- 

359       Cra.  644  114,118,331,332 

Browder  v.  McArthur,  7  Wheat.  58      622 
Brown  v.  Apsden,  14  How.  25  623 

252   v.  Chesapeake  &  O.  Canal  Co., 

4  Fed.  R.  770  530 

323    v.   Clark,   3    Woodeson's   Lect. 

378  67 

149  v.   County  of  Buena  Vista,  95 

U.  S.  157  176,  197 

345  v.  Deere,  6  Fed.  R.  484 ;  2  Mc- 

309   Cra.  425  340 

556  v. ,  6  Fed.  R.  487     340,  341 

485  v.  Dowthwaite,  1  Madd.  448     85 

96  v.  Evans,  18  Fed.  R.  56        564 

160  v.  Guarantee  Trust  Co.,  128  U.  S 

586   403 

27    v.  Hall,  6  Blatchf.  405 

v.  Higden,  1  Atk.  291 

69    v.  Huger,  21  How.  305 

v.    Pacific    Mail    S.    S. 

370       Blatchf.  525 

v.  Philadelphia,  W.  &  B.  R.  Co., 

584       9  Fed.  R.  183 

415    v.  Piatt,  2  Cranch  C.  C.  253 

v.  Pierce.  7  Wall.  205 

442    v.  Pond,  5  Fed.  R.  31 

y.  Ricketts,  2  Johns.  Ch.  (N.  Y) 

558       425  232 

v. 1  3  Johns.  Ch.  (N.  Y.)  555 

186    v.  Robertson,  2  Phill.  173 

v.  Swann,  9  Pet.  1 

620   v. ,  10  Pet.  497  4,  418 

119    v.  The   Independence,  Crabbe, 

309       54  401 

597    „.  Toledo,  P.  &  W.  R.  Co.,  35 

605       Fed.  R.  444  375 

452    v.  Vermuden,  1  Chan.  Cas.  272 

91,  92,  124 

197    v.  Warner,  3  Beav.  292  257 

343    Browne  v.  Browne,  1  Wash.  429  26 

480    Brownell  v.  Curtis,  10  Paige  (N.  Y.), 
89       210  205,  225 

Brownsville  v.  Loague,  129  U.  S.  493 
186  536,  539 

159    Brownsword  v.  Edwards,  2  Ves.  Sen. 

21:;  173 

291    Broyles  v.  Buck,  37  Fed.  R.  137  483 

467    Bruce  v.  Manchester  &  K.  R.  R.  Co., 
562        117  U.  S.  514  23,  24,  596 

328    Brug^er  v.  State  Investment  Ins.  Co., 
5  Sawy.  304  13; 

471    Brundage  v.  Goodfellow,  4  Halst.  Ch. 
337        (N.J.')  513 

332    Brunker,  Ex  parte,  3  P.  Wms.  312 
226    Brunswick  (Duke  of)  v.  King  of  Han- 
478       over,  6  Beav.  1 


126 

213 

241 

73 

Co.,   5 

89,  291 


531 

426 
215 
530 

,284 

90 

284 

467 


125 

168 

391 

68 


XXX 


TABLE   OF   CASES. 
[References   are  to  pages.] 


Bryan  v.  Parker,  1  Y.  &  C.  170  448 

v.  Spruill,  4  Jones  Eq.  (N.  C) 

27  116 

Bryant  v.  Leyland,  6  Fed.  R.  12  652 

y.  Thompson,  27  Fed.  R.  881         687 

v.  Western  Un.  Tel.  Co.,  17  Fed. 

R.  825  324 

Buchanan  v.  Hodgson,  11  Beav.  368     205 

v.  Howland,  2  Fisher  Pat.  Cas. 

341  333 

Bucher  v.  Cheshire  R.  R.  Co.,  125 

U.  S.  555  557,  558 

Buck  v.  Fawcett,  3  P.  Wins.  242  527 

v.  Hermance,  1  Blatchf.  322  333 

v.  Piedmont  &  A.  L.  I.  Co.,  4  Fed. 

R.  849  12,  379,  380 

Buckeridge  v.  Glasse,  1  Cr.  &  Ph.  126     121 
Buckingham  v.  Burgess,  3  McL.  368 

425,  426 

v.  McLean,  13  How.  150        467,  604 

Buckingham  (Duke  of)  v.  Duchess 
of  Buckingham,  2  Eq.  Cas.  Abr. 
527  340 

Buckley  v.  United  States,  4  How.  251     406 
Buckner  v.  Finley,  2  Pet.  586  33 

Buddicum  v.  Kirk,  3  Cranch,  293    429,  431 
Buel  v.  Van  Ness,  8  Wheat.  312  616 

Buell  v.  Conn.  Mut.  L.  I.  Co.,  1  Cin. 

L.  B.  51  553 

Buerk  v.  Imhaeuser,  8  Fed.  R.  457 

107,  126,  140,  141,  149,  151,  162,  176 
Buffalo  Ins.  Co.  v.  Providence  &  S. 

S.  S.  Co.,  29  Fed.  R.  237  491 

Buffington   v.   Harvey,  95   U.   S.   99 

519,  520,  524 
Buford  v.  Strother,  3  McCra.  253 ;  10 

Fed.  R.  406 
Bull  v.  Bank  of  Kasson,  123  U.  S. 

105 
Bullen  t?.  Michel,  2  Price,  399 
Bullinger  v.  Mackey,  14  Blatchf.  355 
Bullock  v.  Richardson,  11  Ves.  375 
Bunbury  v.  Bunbury,  1  Beav.  318 
Bunce  v.  Gallagher,  5  Blatchf.  481 
Bunker  v.  Stevens,  26  Fed.  R.  245 
Burch  v.  Cavanaugh,  12  Abb.  Pr.  n.  s. 

(N.  Y.)  410  310 

Burck  v.  Taylor,  39  Fed.  R.  581  570, 

574,  575 
Burdell,  Ex  parte,  32  Fed.  R.  681  494 

Burdett,  In  re,  127  U.  S.  771 
Burdick  v.  Hale,  7  Biss.  96 
Burdsall  v.  Curran,  31  Fed.  R.  918 
Burford,   Ex  parte,  1  Cranch  C.  C 
456 

v. ,  3  Cranch,  448  540,  545 

Burgess  v.  Graffam,  10  Fed.  R.  216      238 

v.  Seligman,  107  U.  S.  20       557,  558 

Burkett  v.  Randall,  3  Meriv.  466  447 

Burlington,  C.   R.  &  N.  Ry.  Co.  v. 
Dunn,  121  U.  S.  182  609 

v. ,  122  U.  S  513  590 

v.  Simmons,  123  U.  S.  52  467 

Burnett  v.  Chetwood,  2  Meriv.  441       316 
v.  Craig,  30  Ala.  135  310 


Burney  v.  Morgan,  1  Sim.  &  S.  358  89 
Burnham  v.  Bowen,  111  U.  S.  776  349, 
350,  351,  353 


v.  Dalling,  18  N.  J.  Eq.  132 

v.  Rangeley,   2    Woodb.   &   M. 


417 


212 
480 


172 


v.  Webster,    1    Woodb.    &    M. 


199 


29 

33 

450 
232 
136 
304 
4 
478 


534 
573 
514 

508 


Burnley  v.  Town  of  Jeffersonville,  3 

McL.  336  186,  211 

Burpee  v.  First  Nat.  Bank,  5  Biss. 

405  219, 220 
Burr,  Ex  parte,  9  Wheat.  529  535 
v.  Des  Moines  R.  R.  &  N.  Co.,  1 

Wall.  99  555 

Burrell  v.  Hackley,  35  Fed.  R.  833       396 

v.  Pratt,  35  Fed.  R.  834  396 

Burrowes  v.  Lock,  10  Ves.  470  479 
Burton  v.  Smith,  4  Wash.  522  85 
v.  West  Jersey  Ferry  Co.,  114 

U.  S.  474  560 

Bushnell  v.  Kennedy,  9  Wall.  387  33, 

161,  587 
Bussard  v.  Catalino,  2  Cranch  C.  C. 

421  424,  494 

Butler  v.  Douglass,  3  Fed.  R.  612         444 

v.  Freeman,  Ambl.  301  344 

v.  Young,  1  Flipp.  276  5 

Butterworth  v.  Bailey,  15  Ves.  358      238 

v.  Hill,  114  U.  S.  128      152,  162,  169 

Butz  T.  E.  R.  Co.  v.  Jacobs  Electric 

Co.,  36  Fed.  R,  191  322 

Buxton  v.  James,  5  De  G.  &  Sm.  80    197, 

315 

v.  Lister,  3  Atk.  383  318 

Buzard  v.  Houston,  119  U.  S.  347  7,8,17 
Byers  v.  Fowler,  12  Ark.  218  563 

Byrne  v.  Byrne,  2  Sch.  &  Lef.  537  326 
Byron,  In  re,  18  Fed.  R.  722  544 

Byron  (Lord)  v.  Johnston,  2  Meriv. 

29  331,  332 


Cabrera,  Ex  parte,  1  Wash.  232  391 

Calm  v.  Qung  Wah  Lung,  28  Fed.  R. 

396  482, 485 

Caldwell  v.  Taggart,  4  Pet.  190     101,  104 

v.  Walters,  4  Cranch  C.  C.  577 

335,  336 
California  A.  S.  P.  Co.  v.  Molitor,  113 

U.  S.  609  504,  597 

Calkins  v.  Bertrand,  8  Fed.  R.  755      478, 

479 
Callaghan  v.  Mvers,  128  U.  S.  617  463 
Callicot,  Re,  8  Blatchf.  89  542 

Calloway  v.  Dobson,  1  Brock.  119  243 
Cal  verley  v.  Williams,  1  Ves.  Jr.  211  251 
Calvert  v.  Gray.  2  Coop.  Ch.  171,  n.  330 
Camblos  v.  Philadelphia  &  R    R.  R. 

Co.,  9  Phila.  (Pa.)  411;  4  Brewst. 

(Pa.)  563  325,  326 


TABLE    OF   CASES. 
[References  are  to  pages.] 


XXXI 


579 


564 
502 


435 

587 


369 

555 

65 

247 

276 
472 
564 
623 
120 


Cambria  Iron   Co.   v.  Ashburn,  118 

U.  S.  54 
Camburton  v.  United  States,  95  U.  S. 

285 
Camden  v.  Mayliew,  129  U.  S.  73 
Camden  &  A.  K.  R.  Co.  v.  Stewart,  4 

C.  E.Green  (N.  J.),  69 
Cameron  v.  Hodges,  127  U.  S.  322 

v.  McRoberts,  3  Wheat.  591     96, 104 

Camp  v.  Receivers  of  Niagara  Bank, 

2  Paige  (N.  Y.),  283 
Campbell  v.  Boyreau,  21  How.  223 

v.  Campbell,  2  M.  &  C.  25 

.  v. ,  2  Halst.  Eq.  (N.  J.)  740 

v.  City  of  New  York,  35  Fed.  R. 

14 

v.  Holyland,  L.  R.  7  Ch.  D.  166 

v.  James,  3  Fed.  R.  513 

„. f  31  Fed.  R.  525 

v.  Mackay,  1  M.  &  Cr.  603 

p.  Mayor,  &c.  of  N.  Y.,  33  Fed. 

R.  795  184,  205 

v.  Read,  2  Wall.  198  593 

v.  Seaman,  63  N.  Y.  568  308 

v.  Tousey,  7  Cow.  (N.  Y.)  64  68 

Canal  Co.  v.  Gordon,  6  Wall.  561     97,  99 
Canal  &  C.  Sts.  R.  R.  Co.  v.  Hart,  114 

U.  S.  654  562 

Candler  v.  Pettit,  1  Paige  (N.  Y.),  168    240 
Cannon  v.  Pratt,  99  U.  S.  619         591,  592 

v.  United  States,  118  U.  S.  355     593 

Carey  v.  Brown,  92  U.  S.  171  87 

Carlisle  v.   Cooper,   3   C.   E.    Green 

(N.  J.),  241  439 

Carlisle  (Countess  of)  v.  Lord  Berk- 
ley, Amb.  599  382 
Carnochan  v.  Christie,  11  Wheat.  446    246, 

247 
Carnotic  (Nabob  of)  v.  East  India  Co., 

1  Ves.  Jr.  374  244 

Caro  v.  Metropolitan  El.  Ry.  Co.,  46 

N.  Y.  Super.  Ct.  138 
Carpenter  v.  Providence   Wash.  Ins. 

Co.,  4  How.  185 

v. ,  16  Pet.  495  444,  557 

v.  Westinghouse  A.  B.  Co.,  32 

Fed. R.  434 
Carper  v.  Fitzgerald,  121  U.  S.  87 
Carr  v.  United  States,  98  U.  S.  433 
Carrington   v.  Florida  R.   R.  Co., 

Blatchf.  468 

r.  Holly,  1  Dick.  280 

v.  Stimson,  1  Curt.  437 

Carrington  (Lady)  v. Cantillon,  Bunb. 

107 
Carroll  v.  Parran,   1    Bland    (Md.), 

125,  n. 

v.  Safford,  3  How.  441 

Carroll  County  v.  Smith,  111  U.  S. 

556 
Carron  Iron  Co.  v.  Maclaren,  5  H.  L. 

C.  416  468 

Carson  v.  Dunham,  121  U.  S.  421        572, 

573,  574,  587,  590 

v.  Hyatt,  118  U.  S.  279  26 


309 


396 


155 
548 

68,69 

9 
587 
435 
425 

155 

521 
15 

558 


Carson  v.  Robertson,  Chase's  Dec.  475  84 
Carson  &  R.   Lumber  Co.  v.  Holtz- 

claw,  39  Fed.  R.  578  578,  579 

„. }  39  Fed.  R.  885  578 

Carstairs  v.  Mechanics'  &  T.  Ins.  Co., 

13  Fed.  R.  823  155 

Cart  v.  Hodgkin,  3  Swanst.  161  450 

Carte  v.  Ball,  3  Atk.  496  211 

Carter  v.  De  Brune,  1  Dick.  39  155 

v.  Ingraham,  43  Ala.  78  141,  149 

v.  New  Orleans,  19  Fed.  R.  659     291 

Carwick  v.  Young,  2  Swanst.  239  440 
Cary,  In  re,  10  Fed.  R.  622  293,  505 
v.  Domestic  Springued  Co.,  2d 

Fed.  R.  38  331 

Casamajor  v.   Strode,   1   Sim.   &   S. 

381  328 

Casborne  v.  Barsham,  5  M.  &  C.  113  450 
Case  i\  Beauregard,  99  U.  S.  119  18 

v. ,  101  U.  S.  688  18,  445 

v.  Clarke,  5  Mason,  70  27 

v.  Redfield,  4  McL.  526  125,  131 

Caster  v.  Wood,  Baldw.  289  228,  245 

Castle  v.  Bullard,  23  How.  172  556 

Castro  v.  De  Uriarte,  12  Fed.  R.  251  530 
Cathcart  v.  Hewson,  1  Hayes,  173  499 
Catherwood  v.  Gapete,  2  Curt.  94  550 
Catlett  v.  Pacific  Ins.  Co.,  1  Paine, 

594  27,  398 

Catterall  v.  Purchase,  1  Atk.  290  525 

Catton  v.  Earl  of  Carlisle,  5  Madd. 

427  266,  276 

Ca vender  v.  Ca vender,  114  U.  S.  464     186 

p. 1  3  McCra.  383  486 

Cawthorn  v.  Chalie,  2  Sim.  &  S.  127  170 
Celluloid    Manuf.    Co.    v.    Arlington 

Manuf.  Co.,  34  Fed.  R.  324  322 

v.  Chandler,  27  Fed.  R.  9  483- 

v.  Goodyear  D.  V.Co.,  13  Blatchf. 

375  324 

v.  Russell,  35  Fed.  R.  17  423 

Central  Nat.  Bank  v.  Hazard,  30  Fed. 

R.  484  367 

Central  Pacific  R.  R.  v.  Dyer,  1  Sawy. 

641  122,  124 

Central  R.  R.  &  B.  Co.  v.  Pettus,  113 

U.  S.  116  88,  90,  290,  477,  481,  496, 

497,  498 
Central  Trust  Co.  v.  East  Tenn.,  Va. 

&  Ga.  R.  Co.,  30  Fed.  R.  895   12,  352 


Ohio  Cent.  R.  R.  Co.,  23  Fed. 


R.  306 


v.  Texas  &  St.  L.  Ry.  Co.,  22  Fed. 


360,  386 


347,  352 

354 

352,  353 

378 

463 

Co., 

384 
363,  365, 
366,  368,  372 
,  20  Fed.  R.  74  375 
,  27  Fed.  R.  175  462 
,  29  Fed.  R.  618  12,  346,  387 


R.  135 

—  v. ,  23  Fed.  R.  673 

—  v. ,  23  Fed.  R.  703 

—  v. ,24  Fed.  R.  153 

—  „. (  32  Fed.  R.  448 

—  v.  Wabash,  St.  L.  &  P.  R.  R 
23  Fed.  R.  675 

—  v. ,  23  Fed.  R.  863 


XXX11 


TABLE   OF   CASES. 
[References  are  to  pages.] 


398 
376 

207 


Central  Trust  Co.  p.  Wabash,  St.  L.  & 
P.  R.  R.  Co  ,  32  Fed.  R.  187       384,  385 

v. 32  Fed.  R.  684  482,  483 

v. ,  34  Fed.  R.  259    363, 374,  375 

Centre  p.  Keene,  2  Cranch  C.  C.  198      426 
Chadwick  v.  Broadwood,  3  Beav.  316    208 

v.  United  States,  3  Fed.  R.  750 

Chalie  v.  Pickering,  1  Keen,  749 
Chamberlain   v.   Agar,  2  Ves.  &  B. 

259 
Chamberlaine  v.  Chester   &  B.  Ry. 

Co,  1  Exch.  869  299,  300 

Chamley  p.  Lord  Dunsany,  2  Sch.  & 

Lef.  090  247,  248 

Chancey  v.  May,  Prec.  Ch.  592  90 

Chandos  (Duke   of)  v.  Talbot,  2  P. 

Wms.  372  80 

Chanute  City  p.  Trader,  132  U.  S.  210    616 
Chapin  p.  Sears,  18  Fed.  R,  814  125 

v.   Walker,  6   Fed.   R.   794;   2 

McCra.  175  211,  246 

Chaplin  V.  Young,  6  L.  T.  n.  s.  97        356 
Chapman  p.  Barger,  4  Dill.  557  29 

p.  Barney,  129  U.  S.  677  27,  88, 

245,  481,  590 

v.  Borer,  1  Fed.  R.  274  11 

p.  Derby,  2  Vern.  117  4 

p.  School  District  No.  1,  Deady, 

108  116,  191,  211,  217 

Chappedelaine     v.     Dechenaux,     4 

Cranch,  306 
Chappell  p.  Purday,  4  Y.  &  C.  485 

p.  Sheard,  1  Jur.  n.  s.  996 

Charles    River     Bridge    p.    Warren 

Bridge,  6  Pick.  (Mass.)  376 
Chase  v.  Dunham,  1  Paige  (N.  Y.), 
572  235 

p.  Edwards,  2  Wend.  (N.  Y. )  283    409 

p.  Sanborn,  6  Off.  Gaz.  932  314 

Chateaugay  O.  &  I.  Co.,  Petitioner, 

128  U.  S.  544  534,  559,  560 

Chatfield  v.  Boyle,  105  U.  S.  231  596 

Chedworth  (Lord)  v.  Edwards,  8  Ves. 

46  305 

Cherokee  Nation  v.  Georgia,  5  Pet.  1 

77,78 
Cherrey  v.  Monro,  2  Barb.  Ch.  (N.  Y.) 

618 
Chertsy  Market,  In  re,  6  Price,  261 
Chesapeake  &  O.  R.  R.  Co.  p.  Fatton, 

5  W.  Va.  234 
Chester  p.  Life  Assoc,  of  Amer.,  4  Fed. 

R.  487  257,  259,  338 

Chetwynd  p.  Lindon,  2  Ves.  Sen.  450     179 
Chicago  &  A.  Ry.  Co.  v.  New  York, 
L.  E.  &  W.  R.  Co.,  34  Fed.  R.  516     325 

v.  Union  R.  M.  Co,  109  U.  S.  702 

184,  205,  232,  254,  434 
Chicago  &  V.  R.  R.  Co.  v.  Fosdick,  106 

U.  S. 47  472,  473 

Chicago,  B.  &  Q.  R.  Co.  v.  Burlington, 

C.  H.  &  N.  R.  Co.,  34  Fed.  R.  481      331 
Chicago,  I.  &  N.  P.  R.  R.  Co.  v.  Min- 
nesota &  N.  W.  R.  R.  Co.,  29  Fed. 
R.  337  508 


34 

84 

314 

340 


175 
297 

309 


579 

397 
189 


Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Beck- 
er, 32  Fed.  R.  849  570 

p.  Hartshorn,  30  Fed.  R.  541  1 77 

Chicago,  St.  L.  &  N.  O.  R.  R.  Co.  v. 
Macomb,  2  Fed.  R.  18     136,  170,  178, 

179,  180 
Chicago,  St.  P,  M.  &  O.  R.  R.  Co.  v. 

Dakota  Co,  28  Fed.  R.  219  27 

Childras  v.  Emory,  8  Wheat.  642  34 

Chiles,  Re,  22  Wall.  157  502 

Chisholm  p.  Georgia,  2  Dall.  419  72 

Chittenden  v.  Darden,  2  Woods,  437     549 
Cholmondeley  (Marquis)  v.  Lord  Clin- 
ton, 2  Jac.  &  W.  1  83,  84 

v. ,  2  Meriv.  71  239,  418 

Chowick  v.  Dimes,  3  Beav.  290    257,  258, 

338 
Christie,  Matter  of,  5  Paige  (N.  Y.), 
242  406, 409 

p.  Craig,  2  Meriv.  137  306 

Christmas  p.  Russell,  14  Wall.  69  28 

Christy,  In  re,  3  How.  292  533 

Church  v.  Hubbart,  2  Cranch,  186        401 

v.  Marsh,  2  Hare,  652  293 

Churton  v.  Frewen,  L.  R.  1  Eq.  238      244 
City  Bank  p.  Bangs,  2  Paige  (N.  Y.), 
570  145,  146 

v.  Skelton,  2  Blatchf.  14  301 

Claflin  v.  Commonwealth  Ins.  Co.,  110 

U.  S.  81 
Clare  v.  Wood,  1  Hare,  314 
Claridge  v.  Hoar,  14  Ves.  59 
Clark  v.  American  D.  &  I.  Co,  25  Fed. 
R.  641  493 

v.  Barnard,  108  U.  S.  436  73 

v.  Blair,  14  Fed.  R.  812  513 

v.  Freeman,  11  Beav.  112  323 

v.  Hall,  7  Paige  (N.  Y.),  382  514 

p.  Hancock,  94  U.  S.  493  616 

p.  Killian,  103  U.  S.  766  519,  520 

v.  Lord  Rivers,  L.  R.  5  Eq.  91       119 

p.  Periam,  2  Atk.  337  117 

v.  Reyburn,  8  Wall.  318  472 

v.  Scott,  5  Fisher  Pat.  Cas.  245     212 

v.  Smith,  13  Pet.  195  9,  558 

p.  Sohier,  1  Woodb.  &  M.  368        559 

v.  Wooster,  119  U.  S.  322  15 

Clark's   Ex'rs  p.   Van  Riemsdyk,   9 

Cranch,  153  218,  396 

Clarke,  Ex  parte,  1  Russ.  &  M.  563       328 

p. ,  100  U.  S.  399      541,  543,  547 

v.  Byne,  13  Ves.  386  143 

v.  Mathewson,  12  Pet.  164     28,  111, 

262,  267 

p. ,  2  Sumner,  262  262,  267 

p.  Morey,  10  Johns.  69  64 

v.  Priced  2  Wils.  Ch.  Cas.  157       318, 

319 

v.  Tipping,  4  Beav.  588  247,  248 

p.  Threlkeld,  2  Cranch  C.  C.  408  514 

p.  White,  12  Pet.  ITS  319,  325 

Clarkhuff  p.  Wisconsin,  I.  &  N.  R.  R. 

Co,  26  Fed.  R.  465  590 

Cl.ixton  v.  Adams,  1  MacAr.  (D.  C.) 
496  425,  427 


TABLE    OF   CASES. 
[References  are  to  pages] 


XXX1U 


Clavbrook  v.  City  of  Owensboro,  23 

Fed.  R.  631  325 

Clement  v.  Griffith,  C.  P.  Coop.  470  284 
Clements  v.  Moore,  6  Wall.  299  232,  245 
Cleveland  v.   Chamberlain,   1  Black, 

419  504 

Cleveland  Ins.  Co.  v.  Eeed,  1  Biss. 

180  10,  197 

Clifton  v.  United  States,  4  How.  242  406 
Clinch  v.   Financial   Corporation,  L. 

B.  4  Ch.  117  89 

Clinton  v.  Englebrecht,  13  Wall.  434  20 
Clinton  Bridge,  The,  10  Wall.  454  198 
Cliquot's  Champagne,  3  Wall.  114  4U0 
Clodimoro  Cota,  Ex  parte,  110  U.  S. 

385  548 

Clum  v.  Brewer,  2  Curt.  506  336 

Coal  Co.  v.  Blatchford,  11  Wall.  172  20 
Cobb  v.  Globe  Mut.  L.  I.  Co.,  3  Hughes, 

452  585 

Cobbeltiom  v.  William,  Chan.  Cal.  II.  3 
Coburn  v.  Cedar  Valley  L.  &  C.  Co. 

25  Fed.  R. 791  574 

Cochrane  v.  O'Brien,  2  Jones  &  La.  T. 

380  143 
Cock  v.  Evans,  9  Yerg.  (Tenn.)  287  244 
Cocker  v.  Bevis,  1  Ch.  Cas.  61  528 
v.  Franklin  H.  &  B.  Co.,  1  Story, 

169  428 

Codrington  v.  Houlditch,  5  Sim.  286      264 

v.  Johnstone,  1  Beav.  520  359 

Coe  v.  Louisville  &  N.  B.  B.  Co.,  3 

Fed.  B.  775  325,  326 
v.  New  Jersey  Midland  By.  Co., 

27  N.  J.  Eq.  37  347,  365,  366 

Coffeen  v.  Brunton,  5  McL.  256  333 

Coffin  v.  Heath,  6  Met.  (Mass.)  76  472 
Cohen  v.  Commissioners  of  Goldsboro, 

77  N.  C.  2  310 

Cohens  v.  Virginia,  6  Wheat.  264  25,  613 
Colin  v.  Louisville,  N.  O.  &  T.  B.  B. 

Co.,  39  Fed.  B.  227  579 
Coiron  v.  Millaudon.  19  How.  113  99 
Coit  v.  Campbell,  82  N.  Y.  509  265 
17.  North  Carolina  G.  A.  Co.,  9 

Fed.  B.  577  398,  552 

Colburn  v.  Duncombe,  9  Sim.  151  84 

Cole  S.  M.  Co.  v.  Virginia  &  G.  H.  W. 

Co.,  1  Sawy.  470  324,  325 

v. ,  1  Sawy.  685  294,  325, 337,  342 

Coleman  v.  Martin,  6  Blatchf.  119         290 

y. ;  6  Blatchf.  291  231 

v.  West  Hartlepool  Ry.  Co.,  8  W. 

B.  734  328 

Colgate  v.  Compagnie  Francaise,  23 

Fed.  B.  82  398,  418.  552 

Collins  v.  Peebles,  2  Fisher's  Pat.  Cas. 

541  10 

—  v.  Wellington,  31  Fed.  11.  244       571 

Collinson  v. ,  18  Ves.  353       281,  891, 

392 
Colman  v.  Eastern  Counties  By.  Co., 

10  Beav.  1  298,  299 

Colombian  Govt.  v.  Bothschilil,  1  Sim. 

94  139 


Colson  v.  Lewis,  2  Wheat.  377  27,  28 

v.  Thompson,  2  Wheat.  336  300 

Colton  v.  Boss,  2  Paige  (N.  Y.),  396  118 
Columbia  College  v.  Lynch,  70  N.  Y. 

440  300 

17.  Thacher,  87  N.  Y.  311  301 

Columbian   Ins.    Co.   v.    Stevens,   37 

N.  Y.  536  369 

Colvin,  Matter  of,  3  Md.  Ch.  279  312 

Commercial  &  S.  Bank  v.  Corbett,  5 

Sawy.  172  584 

Commercial  Mut.  M.  I.  Co.  v.  Union 

Mut.  Ins.  Co.,  19  How.  318  215 

Commissioners  v.  Aspinwall,  24  How. 

376  536 

v.  Gorman,  19  Wall.  061         500,  563 

v.  Sellew,  99  U.  S.  624  538,  539 

Commissioners  of  Johnson  County  v. 

Thayer,  94  U.  S.  631  557 

Commissioners  of  Tippecanoe  County 

17.  Lucas,  93  U.  S.  108  614 

Commonwealth  v.  Franklin  Ins.  Co., 

115  Mass.  278  372,  374 

Concannon  v.  Cruise,  2  Moll.  332  398 

Conn  v.  Penn,  5  Wheat.  424  199 

Connecticut  Mut.  L.  I.  Co.,  Petitioner, 

131  U.  S.,  App.  clxxx.  535 

v.  Cushman,  108  U.  S.  51  9,  473 

v.  Union  Trust  Co.,   112  U.  S. 

250  411 

Connecticut  &  P.  B.  B.  Co.  v.  Hendee, 

27  Fed.  B.  678  434 

Conner  v.   Belden,   8   Daly   (N.  Y.) 

257  386,  387 

Connolly  v.  Belt,  5  Cranch  C.  C.  405      309 

17.  Kretz,  78  N.  Y.  620  387 

Conolly  v.  Taylor,  2  Pet.  556  239 

i7.  Wells,  33  Fed.  R.  205  93 

Conry  v.  Caulfield,  2  Ball  &  B.  255  247 
Consolidated    S.    V.    Co.   v.    Asliton 

Valve  Co.,  26  Fed.  B.  319  14 

Const  v.  Harris,  Turn.  &  B.  496       343, 

356 
Continental  Ins.   Co.  v.  Bhoads,  119 

U.  S.  237  480,  590 

Continental  Store  Service  Co.  v.  Clark, 

100  N.  Y.  365  25 

Conyers  v.  Lord  Abergavenny,  1  Atk. 


285 
Cook  v.  Bamfield,  3  S  wanst.  607 


91,  124 
522,  524, 
525 


v.  Bay,  4  How.  (Miss.)  485  447 

17.  Bee,  2  Tenn.  Ch.  344  244 

i?.  Mancius,  3  Johns.  Ch.  (N.  Y.) 

427  196 

v.  Staats,  18  Barb.  (N.  Y.)  107  407 

t?.  Whitney,  3  Woods,  715  579 

Cooke  v.  Davies,  Turn.  &  B.  309      151, 241 

17.  Gwvn,  3  Atk.  689  377 

v.  Seligman,  7  Fed.  B.  263      573,  574 

Coombe  v.  Stewart,  13  Beav.  11  172 
Coombs  17.  Brooks,  3  De  G.  &  S.  452  453 
Coon  v.  Abbott,  37  Fed.  B.  98  422 
Cooper  y.  Galhraith,  3  Wash.  546  27 
17.  Lewis,  2  Phill.  178  434 


XXXIV 


TABLE    OF   CASES. 
[References  are  to  pages.] 


Cooper  v.  Mattlievs,  8  Law  Rep.  413 ; 

5  Penn.  L.  J.  38  332,  337 
v.  New  Haven  S.  B.  Co.,  18  Fed. 

R.  588  480 

v.  Phibbs,  L.  R.  2  H.  L.  170  3 

v.  Schlesinger,  111  U.  S.  148         560 

v.  Wood,  5  Beav.  391  283 

Cooper  Manuf.  Co.  v.  Ferguson,  113 

U.  S.  727  154 

Copeland  v.  Wheeler,  4  Bro.  C.  C.  256 

219,  225 
Copen  v.  Flesher,  1  Bond,  440  123,  239 
Corbin  v.  County  of  Black  Hawk,  105 

U.  S.  659  33 

Core  v.  Vinal,  117  U.  S.  347  571 

Cornell  v.  Williams,  20  Wall.  226         402, 

409,  425 
Corning  v.  Troy  Iron  &  Nail  Factory, 

15  How.  451  623 

Costs  in  Civil  Cases,  1  Blatclif.  652  5 

Cottier  v.  Stiinson,  18  Fed.  R.  689  530 
Cottingham  v.  Earl  of  Shrewsbury,  3 

Hare,  627  475 

Cottle  v.  Krementz,  25  Fed.  R.  494  210 
Coulson  v.  Walton,  9  Pet.  62  78 

Countess  of  Carlisle  v.  Lord  Berkley, 

Amb.  599  382 

Countess  of  Plymouth  v.  Bladon,  2 

Vern.  32  440 

Countess  of  Portland  v.  Prodgers,  2 

Vern.  104  64 

County  Court  of  Taylor  Co  v.  Balti- 

timore  &  O.  R.  R.  Co.,  35  Fed  R. 

161  570 

Cousins  v.  Smith,  13  Ves.  164  327 

v  ,  13  Ves.  542  90 

Coveny  v.  Athill,  1  Dick.  355  415 

Covington  Drawbridge  Co.  v.  Shep- 
herd, 21  How.  112  344 
Cowdray  v.  Cross,  24  Beav.  445  508 
Cowdrev  v.  Galveston,  H.  &  H   R   R 

Co.,  93  U.  S.  352  496,  497,  498 

v.   Railroad   Co.,  1  Woods,  331 

361,  362,  379,  381,  384,  385 
Cowles   v.   Mercer  County,  7    Wall 

118  8,  26 

v.  Whitman,  10  Conn.  121  297 

Cowslad  r.  Cely,  Prec.  in  Ch.  83  96 
Cowtan  v.  Williams,  9  Ves.  107  143,  145 
Cox  v.  Barney,  14  Blatchf.  289  504 
v    Land   &   Water  Journal  Co. 

L.  R.  9  Eq.  324  316 

v.  Wright,  9  Jur.  N.  s.  981       66,  285 

Cov  v.  Perkins,  13  Fed.  R.  Ill  482 

Cragin  v.  Lovell,  109  U.  S.  194  18 

Craig  v.  Leitensdorfer,  123  U.  S  189  17 
Crampton  v  Zabriskie,  101  U.  S.  601  14 
Crane,  Ex  parte,  5  Pet.  189  533,  534 

t;.  McCov,  1  Bond,  422  16 

v.  .Morris.  6  Pet.  598  556 

Crane  Iron  Co  v.  Hoagland,  108  U. 

S.  5  617 

Crawford   v.   The   William  Penn,  1 

Pet.  C.  C.  106  64 
v. ,  3  Wash.  484              186,  211 


Crawshay  v.  Soutter,  6  Wall.  739 
Crease  v.  Babcock,  10  Met.  (Mass.) 

532 
Credit   Co.  of  London   v.   Arkansas 

Cent.  R.  R.  Co.,  15  Fed.  R.  46 
Crehore  v.   Ohio  &  M.  Ry.  Co.,  131 

U.  S.  240 
Cremens  v.  Hawkes,  2  Jones  &  La 

T.  674 
Crenshaw,  Ex  parte,  15  Pet.  119     622, 
Crescent  City  L.  S.  Co.  v.  Butcher's 

Un.  L.  S.  Co.,  12  Fed.  R.  225   173, 

Creuze  v.  Bishop  of  London,  Dick. 

687 
Crew  v.  Jolliff,  Prec.  in  Ch.  93 
v.  Martin,  1  Fowler's  Exch.  Pr. 

225 
Crews  v.  Burcham,  1  Black,  352 
Crittenden,  Matter  of,  2  Flipp.  212 

v.  Field,  8  Gray  (Mass.),  621 

Crocket  v.  Lea,  7  Wheat.  522 
Crockett  v.  Bishton,  2  Madd.  446 
Croft  v.  Day,  7  Beav.  84 
Crofts  v.  Wortley,  1  Chan.  Cas.  241 

Cromwell  v.  County  of  Sac,  96  U.  S. 

51 
Cropper  v.  Coburn,  2  Curt.  465    304, 
Cross,  In  re,  20  Fed.  R.  824 

v.  De  Valle,  1  Wall.  5    87,  249, 

251,  254, 

v.  Morgan,  6  Fed.  R.  241 

Crosse  v.  Bedingfield,  12  Sim.  35 

178, 
Crossley  v.  Derby  G.  L.  Co.,  4  L.  J. 

Ch.  n.  s.  25 

v.  New  Orleans,  20  Fed.  R.  352 

Crouch  v.  Hickin,  1  Keen,  385 

v.  Kerr,  38  Fed.  R.  549  170, 

Crow  v.  Tyrell,  2  Madd.  397 
Crowell  v.  Randell,  10  Pet.  368 
Crowfoot  v.  Mander,  9  Sim.  396 


Croxon  v.  Lever,  12  W.  R.  237 
Cuddy,  Ex  parte,  40  Fed.  R.  62 
,  Petitioner,  131  U.  S.  280 


264 


543, 


Cuff  v.  Platell,  4  Russ.  242 

Cullen  v.  Duke    of  Queensberry,   1 

Bro.  C.  C.  101 
Cummings  v.  Akron  C.  &  P.  Co.,  6 

Blatchf.  509 
v.  Coleman,  7  Rich.  Eq.  (S.  C), 

509 

v.  National  Bank,  101  U.  S.  153 

9,  10,  301, 
Cummins  v.  Adams,  2  Ir.  Eq.  393 
Cunningham  v.   Macon  &  B.   R.    R. 

Co.,  109  U.  S.  446         72,  73,  74,  7€ 

99, 
v.  Otis,  1  Gall.  166         428,  429, 

Cunyngham   v.    Cunyngham,   Amb. 
89  515, 


601 

89 

366 

587 

377 
623 

194, 
208 

379 
480 

157 
122 
489 
447 
114 
408 
317 
193, 
195 

557 
309 
544 
250, 
475 
244 
142, 
396 

15 
14 
182 
217 
238 
615 

256, 
277 
471 
545 

544, 
545 
106 

90 

412 

212 
4, 

558 
476 

i,  98, 
323 
430, 
432 

516 


TABLE   OF   CASES. 
[References  are  to   pages.] 


XXXV 


381 
376 

250 
136 
496 
543 

183 
183 
437 
534 
122 
68, 
370 


Curling  v.  Marquis    Townshend,  19 

Ves.  628  342> 

Curran  v.  Craig,  22  Fed.  R.  101    361, 

v.  St.  Charles  Car  Co.,  32  Fed. 

R.  835 
Curry  v.  Lloyd,  22  Fed.  R.  258 
Curteis  v.  Candler,  Madd.  &  G.  123 
Curtis,  Ex  parte,  106  U.  S.  371      542, 
Curzon  v.  De  la  Zouch,  1  Swanst.  193 

Cust  ».  Boode,  1  Sim.  &  S.  21 
Cuthbert  v.  Galloway,  35  Fed  R.  466 
Cutting,  Ex  parte,  94  U.  S.  14 

v.  Gilbert,  5  Blatchf.  259 

Cuykendall  v.  Miles,  10  Fed.  R.  342 


D. 


DaCosta  ».  DaCosta,  3  P.  Wms.  140  66 
Dakin  0.  Union  Pac.  Ry.  Co.,  5  Fed. 

R.  665  173,  208 

Dalby  v.  Pullen,  1  Russ.  &  M.  296  463 
Dale  17.  McEvers,2  Cow.  (N.  Y.)  118  442 
Dale  Tile  Manuf.  Co.  v.  Hyatt,  125 

U.  S.  46  25 

Dalglish  v.  Jarvie,  2  Macn.  &  G.  231  330, 

B  331,  337 

Dalton  v.  Thomson,  1  Dick.  97  415 

Daly  v.  Kelly,  4  Dow,  417  306 

v.  Maguire,  6  Blatchf.  137  ;  428 

Danbridge  v.  Washington's   Ex'rs,  2 

Pet.  370  85,  96 

Dancer  v.  Hastings,  4  Bing.  2  361 

Daniel  v.  Mitchell,  1  Story,  198  515 

Daniels  v.  Railroad  Co.,  3  Wall.  250  597 
Darley  v.  Nicholson,  2  Dr.  &   War. 

86  394 

Darlington    (Earl  of),    v.    Bowes,    1 

Eden,  271  452 


Darnell  v.  Reyny,  1  Vern.  344       205,  225 
Dart  v.  McKinney,  9  Blatchf.  359 
Darwent  v.  Walton,  2  Atk.  510 
Davenport,  Ex  parte,  6  Pet.  661 

v.  County  of  Dodge,  105  U 

237 

v.  Davenport,  6  Madd.  251 

v.  Dows,  18  Wall.  626 

v.  Fletcher,  16  How.  142 

v.  Stafford,  8  Beav.  503 

Davers  v.  Davers,  2  P.  Wms.  410 
Davidson  v.  Lanier,  4  Wall.  447 


Davie  v.  Heyward,  33  Fed.  R.  93 
Davies  v.  Corbin,  112  U.  S.  36 

v. ,  113  U.  S.  687 

v.  Davies,  9  Ves.  461 

v.  ,  3  De  G.  &  Sm.  698 

v.  Lathrop,  12  Fed.  R.  353 

v. ,  13  Fed.  R.  565 

v.  Quaterman,  4  Y.  &  C.  257 

v.  Williams,  1  Sim.  5 

Davis,  The,  10  Wall.  15 


585 

96 

535 

,  S. 
536 
327 
100 
604 
527 
398 
603, 
604 
597 

24,  536, 
596 
616 
258 
395 
26,34 

437,  589 
126 

170,  270 
73 


Davis  v.  American  Soc.  P.  C.  A.,  6 
Daly  (N.  Y.),  81  310 

v. ,  75  N.  Y.  362  310 

v.  Barrett,  7  Beav.  171  283 

v.  Braden,  10  Pet.  286  597 

v.  Davidson,  4  McL.  136        222,  223 

17.  Davis,  2  Atk.  21  166 

v.    Duke    of     Marlborough,    2 

Swanst.  108  342,  356,  372,  387,  388 

v.  Duncan,  19  Fed.  R.  477    375,  376, 

388 

v.  Gaines,  104  U.  S.  386  139 

v.  Gray,  16  Wall.  203        74,  98,  323, 

356,  357,  359,  361,  369,  371,  372,  378 

v.  James,  2  Fed.  R.  618  10 

v.  Leo,  6  Ves.  784 

v.  Michelbacher,  31  N.  W.  R.  168 

v.  St.  Louis  &  S.  F.  Ry.  Co.,  25 

Fed. R.  786  551, 

v.  Sherron,  1  Cranch  C.  C.  287 

v.  Speiden,  104  U.  S.  83 

v.  Symonds,  1  Cox  Eq.  402 

Davison  v.  Attorney  General,  5  Price, 

398,  n. 
Davoue    v.    Fanning,  4  Johns.    Ch. 

(N.  Y.)  199 
Davy  v.  Seys,  Moseley,  204 
Daws  v.  Benn,  1  Jac.  &  W.  513 
Dawson  v.  Raynes,  2  Russ.  466     382, 

v.  Sadler,  1  Sim.  &  S.  537 

v.  Yates,  1  Beav.  301 

Day  v.   Boston   Belting  Co.,  6  Law 

Rep.  n.  s.  329 

v.  Croft,  2  Beav.  488 

v.  Hartshorn,  3  Fisher  Pat.  Cas. 

32 
v.  New  England  C.   S.  Co.,   3 

Blatchf.  154  332, 

Dayton  v.  Melick,  27  N.  J.  Eq.  362 
Deacon   v.   Sewing  Machine  Co.,  14 

Reporter,  43 
Deakin  v.  Stanton,  3  Fed.  R.  435 
Debenham  v.  Ox,  1  Ves.  Sen.  276 
Deblanco  v.   Singletary,  40  Fed.  R. 

177 
Debutts  v.   McCulloch,  1   Cranch  C. 

C.  286 
De   Carriere  v.  De  Calonne,  4  Ves. 

577 
Decker  v.  Caskey,  2  Green  Ch.  (N. 

J.),  446 

v.  Grote,  10  Blatchf.  331 

Dedekam  v.  Vose,  3  Blatchf.  153 
Deford  v.  Mehaffy,  13  Fed.  R.  481 


Dehon   v.  Foster,  4  Allen    (Mass.), 

545 
Delancy  v.  Wallis,  3  Bro.  C.  C.  12 
Delaware  R.  Co.  v.  Prettyman,   17 

Int.  Rev.  Rec.  99 
Dell  v.  Hale,  2  Y.  &  C.  N.  R.  1 
Del  Valle  v.  Harrison,  93  U.  S.  233 
Denehey   v.   Harrisburg,  2  Pearson 

(Pa.),  330 


386 

587 
508 
522 
478 

219 

90 
497 
103 
383 
173 
377 

406 
385 

312 

336 

247 

151 

340 
478 

584 

425 

390 

453 
213 

498 
574, 
588 

304 
157 

322 
173 
602 

324 


:xxvi 


TABLE   OF    CASES. 
[References  are  to  pages.] 


Y-), 


Denison  v.  Bassford,  7  Paige  (N, 

370 
Dennis    v.    County     of    Alachua,   3 

Woods,  683  573, 

v.  Eddy,  12  Blatchf.  195 

Pennison  v.  Brown,  38  Fed.  R.  535 
Dennistoun  v.  Draper,  5  Blatchf.  336 

v.  Stewart,  18  How.  565 

Dental  Vulcanite  Co.  v.  Wetherbee, 

2  Cliff.  555 
Denton     v.     International     Co.     of 

Mexico,  36  Fed.  R.  1  30,  153, 

Denver  &  N.  O.  R.  Co.  v.  Atchison, 

T.  &  S.  F.  R.  Co.,  13  Fed.  R.  546 
Denver  &  R.  G.  Ry.  Co.  v.  Denver, 

S.  P.  &  P.  R.  Co.,  17  Fed.  R.  867 
Derby  (Earl  of),  v.  Duke  of  Athol,  1 

Ves.  Sen.  203 
De  Saussure  v.  Gaillard,  127  D.  S. 

216 
Desbrow  v.  Crommie,  Bunb.  272 
Deshler  v.  Dodge,  16  How.  622 
Des  Moines  Nav.  Co.  v.  Iowa  Home- 
stead Co.,  123  U.  S.  552 
Desplaces  v.  Goris,  1  Edw.  Ch.  (N. 

Y.),  350 
Des  Rochers,  Ex  parte,  1  McAll.  68 
DeTastet  v.  Bordenave,  Jacob,  516 

Detroit  v.  Dean,  106  U.  S.  537        20, 
Devaynes  v.  Morris,  1  M.  &  Cr.  213 
Devereaux  v.  Marr,  12  Wheat.  212 
Devie   v.  Lord    Brownlow,  2   Dick. 

611 
Devonsher  v.  Newenham,  2   Sch.  & 

Lef.  199  179, 

Devonshire's  (Earl  of)  Case,  11  Coke, 

89 
Dewey  v.  West  Fairmont  G.  C.  Co., 

123  U.  S.  329 
De  Wolf  ».  Johnson,  10  Wheat.  367 

v  Rabaud,  1  Pet.  476  556, 

Dexter  v.  Arnold,  5  Mason,  303    519, 

522,  523, 

Dexterville  Manuf.  &  B.  Co.  v.  Case, 

In  re,  4  Fed.  R.  873 
Dial  i7.  Reynolds  96  U.  S.  340    83,  84, 

Dick  17.  Oil  Well  Supply  Co.,  25  Fed. 

R.  105 

v.  Struthers,  25  Fed.  R.  103 

v.  Swinton,  1  Ves.  &  B.  371 

Dickerson  v.  Colgrove,  100  U.  S.  578 
Dickinson  v.  Planters'  Bank,  16  Wall, 

250 
Didier  v.  Warner,  1  Code  R.  (N.  Y.) 

42 
Dietzsch  v.  Huidekoper,  103  U.  S.  494 

Digby  (Lord)  v.  Meech,  1  Bunb.  195 
Diggs  v.  Wolcott,  4  Cranch,  179 
Dillon  v.  Barnard,  21  Wall.  430     171 

v. ,  1  Holmes,  386 

v.  Francis,  1  Dick.  68 

Dillon  (Lord)  v.  Alvares,4  Ves.  357 


223 

574 

495 
678 
588 
597 

191 

154 

325 

246 

174 

615 

510 

33 

570 

217 
545 
448, 
449 
128 
260 
597 

194 

180 

14 

28 

86 

558 

520, 

525 

352 
123, 

303 

369 

369 

3<J0 

2 

555 

409 

303 
131 
304 
397 
171 
141 
194 


Dilly  w.  Doig,  2  Ves.  Jr.  486 
Dimpfell  v.  Ohio  &  Miss.  R.  R,  Co., 

110  U.  S.  209  20, 

Dinsmore  v.  Central  R.  R.  Co.,  19 

Fed.  R.  153 
i?.  Louisville,  C.  &  L.  Ry.  Co., 

2  Fed.  R.  465  325, 

v.  Maroney,  4  Blatchf  416    426, 

v.  New  York  Board  of  Police, 

12  Abb.  N.  C.  (N.  Y.)  436 
v.  Philadelphia  &  R.  R.  R.  Co., 

3  Cent.  L.  J.  157 
District  of  Columbia  v.  Gannon,  130 

U.  S.  227 
Dixon  v.  Olmius,  1  Cox  Eq.  412 

87.  Ramsay,  3  Cranch,  319 

v.  Western  Un.  Tel.  Co.,  38  Fed. 

R.  377 

v.  Wyatt,  4  Madd.  392 

Doane  v.  Glenn,  21  Wall.  33 
Doble  v.  Potman,  Hardres,  160 
Dobson  v.  Hartford  Carpet  Co.,  114 

U.  S.  439 
Dodge  v.  Briggs,  27  Fed.  R.  161 

v.  Card,  2  Fisher  Pat.  Cas.  116 

v.  Israel,  4  Wash.  323  430, 

v.  Perkins,  4  Mason,  435 

v.  Woolsev,  18  How.  331         98, 

Doe  v.  Hyde,  1*14  U.  S.  247 

v.  McFarland,  9  Cranch,  151 

(d.   Moore)  v.  Nelson,  3   McL. 

383  426, 

v.  Read,  12  East,  57 

v.  Roe,  31  Fed.  R.  97 

Doggett  v.  Emerson,  1  Woodb.  &  M. 

196  190, 

v.  Railroad  Co.,  99  U.  S.  72    86, 

Dolder  v.  Bank  of  England,  10  Ves. 

284  226, 

Donaldson  v.  Williams,  50  Mo.  408 
Donohoe  v.  Mariposa,  L.  &  M.  Co., 

1  Pac.  Coast  L.  J.  211 
Doolittle,  In  re,  23  Fed.  R.  544     371, 

v.  Bryan,  14  How.  563 

Doo  Woon,  In  re,  18  Fed.  R.  898 

Dormer  v.  Fortescue,  3  Atk.  124    137, 
Dormitzer  v.  Illinois  &  St.  L.  Bridge 

Co.,  6  Fed.  R.  217 
Dorn  v.  Fox,  61  N.  Y.  264  146, 

Dorr  v.  Gibboney,  3  Hughes,  382 

Dorsey  v.  Packwood,  12  How.  126 
Dorsheimer  v.   Rorback,  9  C.  E.  Gr. 

(N.J.)  33 
Dos  Hermanos,  The,  10  Wheat.  306 
Doughty  v.  West,  2  Fisher  Pat.  Cas. 

553 
i7.   West,  B.  &  C.  Manuf.  Co., 

8  Blatchf.  107 
Douglas  v.  Butler,  6  Fed.  R.  228      66 

Douglass  v.  County  of  Pike,  101  U.  S. 
677  444,  557, 
17.  Rathbone,  5  Hill  (N.  Y.),  143 


123 

128 

191 

326 
427 

310 

27 

595 
202 

68 

575 
271 
431 
251 

169 
4 
312 
431 
190 
128 
176 
68 

427 
359 
529 

192 
121 

244 
3 

254 

372 
563 
547, 
548 
273 

101 
301 
161, 
162 

300 

514 
602 

333 

482 
,80, 
239 

558 
171 


TABLE   OF   CASES. 
[References  are  to  pages.] 


XXXV 11 


Duvenby  Hospital,  In  re,  1  M.  &  Cr. 

279  294 
Dow  v.  Chamberlin,  5  McL.  281  9 
v.  Memphis  &  L.  K.  R.  Co.,  20 

Fed.  R.  260  352,  355 

Dowell  v.  Applegate,  8  Fed.  R.  698 ; 

7  Sawy.  232  187 

v.  Mitchell,  105  U.  S.  430  17 

Dowling  v.  Dowling,  L.  R.  1  Ch.,  612  475 
Uownham    v.    Alexandria,    9    Wall. 

659  614 

Dows  v.  Chicago,  11  Wall.  108  16,  254 
Dowson  v.   Hardcastle,   2   Cox   Eq. 

279  145 

Doyle  v.  Continental  Ins.  Co.,  94  U.  S. 

535  570 
Drake  v.  Goodridsje,  6  Blatchf.  151  2y0 
v.  The  Oriental,  9  Chic.  L.  N. 

321  611 

Draper  v.  Davis,  104  U.  S.  347  297 

v.  Hudson,  1  Holmes,  208  256 

v.  Town  of  Springport,  15  Fed. 

R.  328  530 

Drew  v.  Harman,  5  Price,  319  291 

Drexel  v.  Berney,  14  Fed.  R.  268  8 

v. ,  122  U.  S.  241  18 

Drvbutter    v.    Bartholomew,    2    P. 

Wms.  127  479 

Dubuque   &  P.  R.   R.  Co.,  Exparte, 

1  Wall.  69  535 
Dudgeon  v.  Watson,  23  Fed.  R.  161     65, 

191,  192 
Dudley's  Case,  1  Penn.  L.  J.  302  329 

Duff  v.  Duff,  31  Fed.  II.  772  578 

Duffield  v.  Greaves,  Cary,  125  180 

Duke  of  Beaufort  v.  Morris,  2  Phill. 
683  450 

v.  Neeld,  12  CI.  &  Fin.  248  3 

Duke  of  Bedford  v.  British  Museum, 

2  M.  &  K.  552  301 
Duke  of  Brunswick  v.  King  of  Han- 
over, 6  Beav.  1  68 

Duke  of  Buckingham  v.  Duchess  of 
Buckingham,  2  Eq.  Cas.  Abr.  527     340 

Duke   of  Chandos   v.    Talbot,  2    P. 
Wms.  372  80 

Duke  of  Somerset  v.  Cookson,  3  P. 
Wms.  389;  1  Lea.  Cas.  in  Eq.  821     17, 
319,  325 

Dummer  v.  Corporation  of  Chippen- 
ham, 14  Ves.  245  83,  178 

Dumont  v.  Fry,  12  Fed.  R.  21  17 

Dumville  v.  Ashbrooke,  3  Russ.  98,  n. 

356 

Duncan  v.  Darst,  1  How.  301        303,  550 

v.  Gegan,  101  U.  S.  810  587 

v.   Mobile  &  O.   R.   R.   Co.,  2 

Woods,  542  350 

Dundee  M.  T.  I.  Co.  v.  School  Dist. 
No.  1,  19  Fed.  R.  359 

Dungey  v.  Angove,  2  Ves.  Jr.  304 


Dunham  v.  Riley,  4  Wash.  126 
Dunkley  v.  Van  Buren,  3  Johns.  Ch 
(N.  Y.)  330 


16 
143, 
115 
653 


439 


Dunlap  v.  Stetson,  4  Mason,  349   111,  156 
Dunlop  v.  Hubbard,  19  Ves.  205  145 

v.  Munroe,  1  Cranch  C.  C.  536 

426  429 
Dunn  v.  Clarke,  8  Pet.  1       28,  lll/l66, 

264,  268 
Dunnegan  v.  United  States,  17  Ct.  CI. 

240  564 

Dunny  v.  Filmore,  1  Vern.  135  523 

Duponti  v.  Mussy,  4  Wash.  128  231 

Durand  v.  Hutchinson,  Mich.    1771, 

in  Chan.  195 

Durant  v.  Essex  Co.,  7  Wall.  107  199 

v. ,  101  U.  S.  555  623 

Durdant  v.  Redman,  1  Vern.  78  182 

Dursley  (Lord)   v.  Berkeley,  6  Ves. 

251  4,  414 

Dushane  v.  Benedict,  120  U.  S.  630        24 
Day  v.  Knowlton,  14  Fed.  R.  107  489 

Dwight  v.  Central  Vt.   R.  R.   Co.,  9 

Fed.  R.  785     11,  175,  181,  194,  196,  203 

v.   Humphreys,  3  McL.  104        141, 

176  239 

v.  Merritt,  4  Fed.  R.  614  '  531 

Dyer  v.  Dyer,  2  Cox  Eq.  92  3 

Dyson  v.  Morris,  1  Hare,  413  272 


E. 


Fades  v.  Harris,  1  Y.  &  C.  N.  R.  235 
Eagle   Iron    Works,   In   re,  8  Paige 

(N.  Y.),  385 
Earl   of    Abergavenny   v.   Powell,  1 

Meriv.  434 
Earl  of  Bath  v.  Sherwin,4  Bro.  P.  C. 

373  4, 

Earl  of  Darlington  v.  Bowes,  1  Eden, 

271 
Earl   of  Derby  v.    Duke   of   Athol, 

1  Ves.  Sen.  203 
Earl  of  Devonshire's  Case,  11  Coke, 


107 


416 
301 
452 
174 


Earl  of  Fingal  v.  Blake,  2  Moll.  50       343 
Earl   of  Ilchester,   Exparte,   7   Ves. 

348  474 

Earl   of  Leicester  v.  Perry,   1   Bro. 

C.  C.  305  189,  211 

Earl   of  Lichfield  v.  Bond,  5  Beav. 

513  226 

Earl  of  Lonsdale  v.  Church,  3  Bro. 

C.  C.  41  373 

Earl   of   Newburgh    v.   Countess    of 

Newburgh,  5  Madd.  364  448 

Earl  of  Suffolk  v.  Green,  1  Atk.  450      4, 

415 
East   India  Co.  v.  Boddam,  13  Ves 

421 
v.  Campbel,  1  Ves.  Sen.  246 


515 

20S, 
227 


East  Oakland  v.  Skinner,  94  U. 

255  443 

East  &  West  India  Docks  &  B.  J.  Ry. 

Co.  v.  Dawes,  11  Hare,  363  209 


xxxvm 


TABLE   OF   CASES. 


[References  are   to  pages.] 


Eastman  v.  Sherry,  37  Fed.  R.  844      479, 

491 
C.  Ry.  Co., 

363,  375 


Easton  v.  Houston  &  T. 
38  Fed.  R.  784 


Eccleston  v.  Petty,  Carth.  79  396 

Echliff  v.  Baldwin,  16  Ves.  267  306 

Eckert  v.  Bauert,  4  Wash.  370  156 

Eddleston  v.  Collins,  3  De  G.  M.  & 

G.  1  247 

Edgell  v.  Haywood,  3  Atk.  354  8 

Edsell  v.  Buchanan,  4  Bro.  C.  C.  254 

170 
Edwards  v.   Connecticut  Mut.  L.  I. 

Co.,  20  Fed.  R.  452  586 

v.  Cunlifie,  1  Madd.  287  472 

v.  Harvey,  G.  Coop.  40  496 

Edwin  v.  Thomas,  1  Vern.  489  453 

Egremont  v.  Cowell,  5  Beav.  620  114 

Ehrman  v.  Teutonia  Ins.  Co.,  1  Fed. 

R.  471  530 

Electric  Tel.   Co.  of  Ireland,  In  re, 

10  W.  R.  4  283 

Eley  v.  Broughton,  2  Sim.  &  S.  188      113 


Elgin  v.  Marshall,  106  U.  S.  578 


23,  595, 
596 


Ellice  v.  Goodson,  3  M.  &  Cr.  653  241 
v.  Roupell,  32  Beav.  299 ;  9  Jur. 

n.  s.  530  415 
t\ ,  32   Beav.    308  ;    9   Jur. 

n.  s.  533  415 

Elliot  v.    Hayrran,  2  Cranch  C.   C. 

678  426 

v.  Sinclair,  Jacob,  545  391 

v.  Van  Voorst,  3  Wall.  Jr.  299        69 

Elliott  v.  Lawhead,  43  Ohio  St.  171      101 

v.  Pell,  1  Paige  (N.  Y.),  263        247, 

248,  476 

v.  Sackett,  108  U.  S.  132  3 

v.  Wiltz,  107  U.  S.  711  72,  75 

Ellis  v.  Colman,  35  Beav.  662  133 

v.  Davis,  109  U.  S.  485        9,  16,  18, 

557 

v.  Jarvis,  3  Mason,  457  479 

v.  Reynolds,  35  Fed.  R.  394  158 

Ellsworth  v.  Curtis,  10  Paige  (N.  Y.), 

105  228 

Elmendorf  v.  Delancey,  Hopk.  (N.Y.), 

555  141 

v.  Taylor,  10  Wheat.  152         98,  104 

Elmer  v.  Creasy,  L.  R.  9  Ch.  69  219 

Elmore  v.  Grvmes,  1  Pet.  469  556 

Elmwood  v.  Marcy,  92  U.  S.  289  443 

Emack  v.  Kane,  34  Fed.  R.  46  17,  324 

Embry  v.  Palmer,  107  U.  S.  3  601 

Emerson  v.  Davies,  3  Story,  768  316 

v. ,  1  Woodb.  &  M.  21  515 

Emma  S.  M.  Co.  v.  Emma  S.  M.  Co. 

of  N.  Y.,  1  Fed.  R.  39         189,  199,  202, 

209 

v.  Parks,  14  Blatchf.  411  564 

Emmott  v.  Mitchell,  14  Sim.  432  188, 

189 
Emperor  of  Austria  v.  Day,  2  Giff. 

628  321,  478 

-,  3  De  G.  F.  &  J.  217   321,  478 


Enfield  v.  Hills,  2  Lev.  238  538 

Engel  v.  Scheuerman,  40  Ga.  206  305 

England  v.  Downs,  6  Beav.  269  372 

English  v.  Foxall,  2  Pet.  595  136 

Knterprise,  The,  3  Wall.  Jr.  58  536 

Equator  M.  &  S.  Co.  v.  Hall,  100  U.  S. 

86  559 

Equitable   L.  A.    Soc.    v.    Patterson, 

1  Fed.  R.  126  125,  173,  182 

Erhardt  v.  Boaro,  113  U.  S.  5:17  14 

Erie  Ry.  Co.  v.   Heath,  10  Blatchf. 

214  461 

v.  Ramsey,  45  N.  Y.  637        194,  303 

Erstein  v.  Rothschild,  22  Fed.  R.  61      530 
Erwin  v.  Lowry,  7  How.  172  601 

v.  United  States,  37  Fed.  R.  470 

411,485,486,487,530 
Esdaile  v.  La  Nauze,  1  Y.  &  C.  394  305 
Eslava  v.  Mazange,  1  Woods,  623       284, 

294,  410 
Estes  v.  Belford,  22  Fed.  R.  275  154 

v.  Gunter,  121  U.  S.  183  24,  596 

v.  Knickerbocker  L.  I  Co.,  N.  Y. 

Daily  Reg.,  Nov.  17, 1882 
Etting  v.  Marx's  Ex'r,  4  Fed.  R.  673 


Evan  v.  Avon,  29  Beav.  144 
Evans  v.  Bacon,  99  Mass.  213 

v.  Bicknell,  6  Ves.  183 

v.  Brown,  109  U.  S.  180 

v.  Coventry,    5  De  G.  M. 

911 

v.  Evans,  1  Ves.  Jr.  96 

v.  Jackson,  8  Sim.  217 

v.  State  Nat.  Bank,  19  Fed.  R. 

676 
Everest  v.  Buffalo  L.  O.  Co.,  31  Fed. 

R.  742 
Everett  v.  Prythergch,  12  Sim.  363 
Everhart  v.   Huntsville  College,  120 

U.  S.  223 
Evert,  Ex  parte,  1  Bond,  197 
Evitt  v.  Price,  1  Sim.  483 
Ewing  v.  Blight,  3  Wall.  Jr.  134 


161 
10, 
197 
116 
526 
117 
616 
G. 
299,  345 
394 


84 
396 

479 

284 


480,  590 
544 
325 

183,  202, 
204 
205 
470 


v. 3  Wall.  Jr.  139 

Express  Cases,  117  U.  S.  1 

Express  Co.  v.  Kountze,  8  Wall.  342     567 

v.  Railroad  Co.,  99  U.  S.  191     19,  68, 

97,  133 
Exton  v.  Turner,  2  Chan.  Cas.  80         452 
Eyre  v.  Countess  of  Shaftsbury,  2  P. 
Wms.  102  471 

v.  Highee,  35  Barb.  (N.  Y.)  502    298 

v.  Potter,  15  How  42  119 

Eyry  v.  Hughes,  L.  R.  2  Ch.  D.  148     247 


Eyster  v.  Gaff,  91  U.  S.  521 


269,  270 


Fagan  v.  Cullen,  28  Fed.  R.  843  488 

Fahie  v.  Lindsay,  8  Oreg.  474  144 

Fairbanks  v.  Amoskeag  Nat.  Bank, 
30  Fed.  R.  602  538,  539,  540 


TABLE    OF    CASES. 
[References  are   to   pages.] 


XXXIX 


Fairbanks  v.  Amoskeag  Nat.  Bank, 

32  Fed.  R.  572  602 

Fairbrother  v.  Prattent,  1  Daniel,  64     145 
Fairfield  v.   County  of  Gallatin,   100 

U.  S.  47  443,  557 

Faithful  v.  Hunt,  3  Anst.  751  85 

Fales   v.  Chicago,  M.  &  St.  P.   Ry. 

Co.,  32  Fed.  R.  673  30,  153 

Fallon  v.  Railroad  Co.,  1  Dill.  121         300 
Fallowes  v.  Williamson,  11  Ves.  306     81, 

255,  259 
Falls  of  Neuse  Manuf.  Co.  v.  Georgia 

Home  Ins.  Co.,  26  Fed.  R.  1  551 

Farez,  In  re,  7  Blatchf.  34  544 

,  In  re,  7  Blatchf.  345  547 

Fargo  v.  Louisville,  N.  A.  &  C.  Ry. 

Co.,  6  Fed.  R.  787  27,  88 
v.  Southeastern  Ry.  Co.,  28  Fed. 

R.  906  479 

Farley  v.  Kittson,  120  U.  S.  303    209,  210, 

397 
Farlow  v.  Lea,  2  C.  L.  R.  329  26 

Farmer  v.  Calvert  Lith.  Co.,  1  Flipp. 

228  140,  174,  316,  332 

v.  Elstner,  33  Fed.  R.  494  317 

Farmers'  Bank  v.  Hooff,  7  Pet.  168       596 
Farmers'  L.  &  T.  Co.,  Petitioner,  129 

U.  S.  206  368,  467,  537 
v.  Burlington  &  S.  W.  Ry.  Co., 

32  Fed.  R.  805  363 
v.  Central  R.  R.  of  Iowa,  2  Fed. 

R.  656  454 
v. ,  7  Fed.  R.  537  ;  2  McCra. 

181  375,  376 

„. 1  8  Fed.  R.  60  385 

v. ,  17  Fed.  R.  758    375,  464,  465 

v.  Denver,  S.  P.  &  P.  R.  It.  Co., 

1  Ry.  &  Corp.  L.  J.  584  25 
v.  Green  Bay  &  M.  R.  R.  Co.,  10 

Biss.  203  ;  6  Fed.  R.  100  464 
v.  Houston  &  T.  C.  R.  R.  Co., 

U.  S.  D.  C.  E.  D.  Tex.  May,  1888    464 
v.  Logansport,  C.  &  S.  W.  Ry. 

Co.,  4  Fed.  It.  184  360 
v.  Missouri,  I.  &  N.  Ry.  Co.,  21 

Fed.  R  264  291,  353 

v.  Waterman,  106  U.  S.  265  596 

Farmington  v.   Pillsbury,  114   U.  S. 

138  438 

Farnsworth   v.    Montana,  129   U.   S. 


104 


532,  593 

478 


Far  well  v.  Kerr,  28  Fed.  R.  345 
Faulder  v.  Stuart,  11  Ves.  296  136 

Faulkner  o.  Daniel,  3  Hare,  199  103 

Fawkes  v.  Pratt,  1  P   Wins.  593  140 

Fay  v.  Erie  &  K.  R.  It.  Bank,  Harr. 

(Mich.)  194  388 

Featherstone  v.  Cooke,  L.  R.  16  Eq. 

298  345 

Feehheimer  v.  Banm,  37  Fed.  R.  167  10 
Feeny,  In  re,  1   Hask.   304;  4  N.  B. 

R.  70  505 

Feistel  v.  King's  College,  10  Beav.  491  356 
Felix  v.  Scharnweber,  125  U.  S.  54  25 
Fellows  v.  Hall,  3  McL.  281  109 


Fenemore  v.  United   States,  3  Dall. 

357  540 
Fenn  v.  Holme,  21  How.  481  5,  6 
Fenton  v.  Hughes,  7  Ves.  287  82,  83 
v.  Lumberman's  Bank,    Clarke 

(N.  Y.),  360  378 

Fenwick  v.  Sears,  1  Cranch,  259  68 

Ferguson  v.  Dent,  15  Fed.  It.  771     79,  288, 

289 

v.  O'Harra,  Pet.  C  C.  493     203,  208 

v.  Ross,  38  Fed.  R.  161  589,  590 

Ferrand  v.  Hamer,  4  M.  &  Cr.  143  338 
Ferrens,  Re,  3  Ben.  442  545 

Ferrers  v.  Cherry,  1  Eq.  Cas.  Abr.  3  260 
Ferrett  v.  Atwill,  4  N.  Y.  Leg.  Obs. 

215  551 

Fidelity  Ins.  Co.  v.  Huntington,  117 

U.  S.  280  571 

Fidelity  Trust  Co.  v.  Gill  Car  Co.,  25 

Fed.  R.  737  586 

Field  v.  Holland,  6  Cranch,  8        396,  447, 


448 
540 
479 

Ch. 

246 

139,  247 


v.  Milton,  3  Cranch,  514 

v.  Schell,  4  Blatchf.  435 

v.    Schieffelin,     7     Johns. 

(N.  Y.)  250 
Fife  v.  Clayton,  13  Ves.  546 
Fifth  Nat.  Bank  v.  Long,  7  Biss.  502      69 
Filder  v.  London,  B.  &  S.  C.  Ry.,  1 

Hem.  &  M.  489  299 

Filli  v.  Delaware,  L.  &  W.  R.  R.  Co., 

37  Fed.  R.  65  30,  153,  154 
Finch  v.  Finch,  2  Ves.  Sen.  492  4 
v.  Lord  Winchelsea,  1  Eq.  Cas. 

Abr.  2  257,  258,  262 

Findlay   v.  Hinde,  1  Pet.  241     142,  176, 

178  °24 
F'ingal  (Earl  of)  v.  Blake,  2  Moll.  50  '343 
Fingal  (Lord)  v.  Blake,  1  Moll.  113  448 
Fink  v.  Patterson,  21  Fed.  R.  602  13.  90 
Finley  v.  Aiken,  1  Grant  (Pa.),  83  319 
First  Nat.  Bank  v.  Douglass  County, 

3  Dill.  298  16 

v.  Kidd,  20  Minn.  234  399 

v.  Rerlick,  110  U.  S.  224  595 

v.  Smith,  6  Fed.  R.  215  101 

First  Nat.  Ins.  Co.  v.    Salisbury,  130 

Mass.  303  290 
Fischer  v.  Hayes,  6  Fed.  R.  63  505,  506 
v. ,  6  Fed.  R.  76  ;  19  Blatchf. 

26  232 

v. ,  16  Fed.  R.  469  461,  462 

v.  ,  22  Fed.  R.  92  455 

v.  O'Shaughnessey,  6  Fed.  R.  92    178 

Fisher  v.  Boody,  1  Curt.  206  119,  478 

r.  Lord,  6  West.  L.  J.  137  337 

v.  Mee,  3  Meriv.  45  439 

v.  Owen,  L.  R.  8  Ch.  D.  645  216 

v.  Rutherford,  Baldw.  188      239,  255 

Fishmongers'  Co.  v.  East  India  Co., 

1  Dick.  163  307 

Fisk,  Ex  parte,  113  U.  S.  713    395,  507, 

542,  544,552,  589 

v.  Ilenarie,  32  Fed.  R.,  417     577,  578, 

579,  580 


xl 


TABLE    OF   CASES. 
[References  are   to  pages.] 


Fisk  v.  Henarie,  35  Fed.  R.  230 

v.  Union  Pacific   R.   R.   Co., 

Blatchf.  3(52 

v. ,  10  Blatchf.  518 

Fitch  v.  Chapman,  2  Situ.  &  S.  31 
v.  Creighton,  24  How.    159 


578 

6 
574 
303 
201 

9,   10, 


125,  558 

v.  Rochfort,  18  L.  J.  Ch.  458         337 

Fitton  v.  Earl  of  Macclesfield,  1  Vern. 

287  476 

Fitzpatrick  v.  Domingo,  14  Fed.  R. 

216  258,  261 

Flack  v.  Holm,  1  Jac.  &  W.  405  390 

Flamang's  Case,  7  Ves.  305  309 

Flanders  v.  Seelve,  105  U.  S.  718  504 

Flash  v.  Dillon,  22  Fed.  R.  1  29 

v.  Wilkerson,  22  Fed.  R.  689  10 

Fleming,  Ex  parte,  2  Wall.  759  537 

Fletcher,  Ex  parte,  6  Ves.  427        379,  380 

v.  Bealey,  33  W.  R.    745  475 

v.  Hamlet,  116  U.  S.  408        568,  575 

v.  Morey,  2  Story,  555 

v.  New  Orleans  N.  E.  It.  R.  Co., 

20  Fed.  R.  345 
Flint  v.  Russell,  5  Dill.  151 
Flippin,  Ex  parte,  94  U.  S.  348 
Florence  S.  M.  Co.  v.  Grover  &  B.  S. 

M.  Co.,  110  Mass.  1 
v.  Singer  Manuf.  Co.,  8  Blatchf. 

113  ;  4  Fisher's  Pat.  Cas.  329 
Florida  v.  Georgia,  17  How.  478 
Fogg  v.  St.  Louis,  H.  &  K.  R.  R 

17  Fed.  It.  871 
Foley  v.  Hill,  3  M.  &  Cr.  476 
Foil's  Appeal,  91  Pa.  St.  434 


306 
121 
535 

337 


99 

77,  109 

Co., 

10,  197 

204 

13,  19, 

324 


284 

315 

6 


Fourniquet  i\  Perkins,  16  How.  82 
Fourth  Nat.  Bank  v.  Stout,  113  U.  S 

684 
Fowle  v .  Lawrason,  5  Pet.  494 

0.  Spear,  7  Penn.  L.  J.  176 

Fowler,  In  re,  4  Fed.  R.  303 

v.  Lindsey,  3  Dall  411 

v.  Merrill,  11  How.  375 


442 


Folland  0.  Lamotte,  10  Sim.  486 
Folsom  0.  Marsh,  2  Story,  100 
Fontain  v.  Ravenel,  17  How.  369 
Foote  v.  Cunard  Min.  Co  ,  17  Fed.  R. 

46  128 

Forbes  0.  Memphis,  E.  P.  &  P.  R.  R. 

Co.,  2  Woods,  323  88,  252,  290,  291 

Ford  0.  Douglas,  5  How.  143      211,  217, 

246,  247 
Forgay  0.  Conrad,  6  How.  201      295,  466, 

467,  599 
Forrest  0.  Manchester,  S.  &  L.  Ry. 

Co.,  4  De  G.  F.  &  J.  126  299 

Forsyth  v.  Pierson,  9  Fed.  R.  801  159 

0.  United  States.  0  How   571         567 

Fosdick  v.  Car  Co.,  99  U.  S.  256    349,  351, 

352 

v.  Schall,  99  U.  S.  235    138,  347,  349, 

350,  351 
Foss  0.   First  Nat.   Bank,  1  McCra. 

474  252 

Foster  0.  Deacon,  Madd.  &  Geld.  59 

270 

0.  Goddard,  1  Black,  506 

0.  Lindsay,  3  Dill.  126       200 


0.  Moore,  1  Curt.  279  312 

•  v.  Swasey,  2  Woodh.  &  M  ,  217 


462 
248, 
475 
333 
499 


596 

14 

318 

544 

540 

428,  429 

430,  431 

470 

499 

66 


v.  Wyatt,  24  Beav.  232 

Fox  v.  Blew,  5  Madd.  147 

v.  Suwerkrop,  1  Beav.  583 

Foxwell  0.  Webster,  10  Jur.  n.  s.  137 

123 

Francis  0.  Flinn,  118  U.  S.  385  17,  18 

Franco  0.  Franco,  3  Ves.  76  87 

Frank  v.  Denver  &  R.  G.  Ry.  Co.  23 

Fed.  R.  123  351,  352 

v. ,  23  Fed.  R.  757         368,  379 

Frankle  0.  Jackson,  30  Fed.  R.  398     369 
Franklin  0.  Hersch,  3  Tenn.  Ch  467     - 
Fraser  0.  Jennison,  106  U.  S.  191 


568, 
570 
337 
322 
322 
550 
587 
28,  111 
4 


0.  Whalley,  2  Hem.  &  M.  10 

Frayser  0.  Russell,  3  Hughes,  227 
Frearson  v.  Loe,  L.  R.  9  Ch.  D.  48 
Freeman,  In  re,  2  Curt.  491 

0.  Butler,  39  Fed.  R.  1 

v.  Howe,  24  How.  450 

0.  Pontrell,  Chan.  Cal.  XIII. 

Freidlander    0.    Pollock,    5    Coldw. 

(Tenn  )  490  161 

Frelinghuysen  v.  Baldwin,  19  Fed.  R. 

49  5"9 

Fremont  v.  Merced  Min.  Co.,  1  Mc- 

AU.  267  327 

French,  Ex  parte,  100  U.  S   1  606 

v.  Brewer,  3  Wall.  Jr.  346  333 

v.  Dear,  5  Ves.  547  141 

0.  Gapen,  105  U.  S.  509  291,  292 

0.  Hay,  22  Wall.  250  303 

0.  Rainey,  2  Tenn.  Ch.  640  219 

0.  Roe,  13  Ves.  593  157 

0.  Shoemaker,  12  Wall.  86  467 

0. ,  14  Wall.  314        99,  119,  212 

Frerichs  v.  Coster,  22  Fed.  R.  637  564 
Fretz  v.  Stover,  22  Wall.  198  232,  265 
Frevall  0.  Bache,  5  Cranch  C.  C.  463 

428,  431 
Friedman  v.  Israel,  26  Fed.  R.  801  588 
Friend  0.  Wise,  111  U.  S.  797  596 

Friezen  0.  Allemania  F.  I.  Co.,  30  Fed. 

R.  349  586 

Frost  0.  Spitley,  121  U.  S.  552  15,  16 

169 


Frow  0.  De  la  Vega,  15  Wall.  552 
Frowd  v.  Lawrence,  1  Jac.  &  W.  655 


328 
417 
275 
84 
449 


v.  Vassall,  3  Atk.  587      193,  194,  201 


Fry  0.  Penn,  2  Bro.  C.  C.  280 

0.  Quinlan,  13  Blatchf.  205 

Fulham  0.  McCarthy,  1  H.  L.  C.  703 
Fullagar  v.  Clark,  18  Ves.  481 
Fuller   0.  Metropolitan  L.   I.  Co.,  37 

Fed.  R.  163  25,  438 

Fulton  v.  Rosevelt,  1  Paige  (N.  Y.), 

178  65 


TABLE    OF   CASES. 
[References  are   to  pages.] 


xli 


Fulton  Bank  v.  Beach,  2  Paige  (N.  Y. ), 
307  223, 

v.  New  York  &  S.  Canal  Co.,  4 

Paige  (N.  Y.),  127 
Furbush  v.  Bradford,    1  Fisher  Pat. 

Cas.  317 
Furlong  v.  Edwards,  3  Md.  99 
Furman  v.  Nichol,  8  Wall.  44 
Furtado  v.  Furtado,  6  Jur.  227 
Fussell  v.  Gregg,  113  U.  S.  550 


G. 


Gaffney  v.  Gillette,  4  Dill.  264,  w.- 
Gage  v.  Kellogg,  26  Fed.  R.  542 

v.  Pumpelly,  115  U.  S.  454 

Gaines  v.  Agneliy,  1  Woods,  238 
v.  Chew,  2  How.  619     118,  124, 

v.  Fuentes,  92  U.  S.  10        9,  29, 

444,  527, 

v.  Mausseaux,  1  Woods,  118 

v.  New  Orleans,  17  Fed.  R.  16; 

4  Woods,  213 

v.  Relf,  15  Pet.  9 

Gait  v.  Osbaldeston,  1  Russ.  158 
Galena  v.  Amy,  5  Wall.  705 
Gallagher's  Ex'rs  v.  Roberts,  1  Wash. 

320 
Galpin  v.  Page,  18  Wall.  350 
Galton  v.  Hancock,  2  Atk.  425 
Galveston    Railroad  v.  Cowdrey,    11 

Wall.  459  88,  89,  90, 

Gamber  v.  Atlee,  2  De  G.  &  Sm.  745 
Gamewell  F.  A.  Tel.  Co.  v.  City  of 

Chillicothe,  7  Fed.  R.  351  125, 
v.  Mayor,  &c,  of  N.  Y.,  31  Fed. 

R.  312 
Gandy  v.  Marble,  122  U.  S.  432     130, 
Garcias  v.  Ricardo,  14  Sim.  265 
Gardiner  v.  Mason,  4  Bro.  C.  C.  478 

v.  Rowe,  4  Madd.  236 

Gardner  v.  Blane,  1  Hare,  381 

v.  Gardner,  87  N.  Y.  14  294, 

v.  London,  C.  &   D.  Ry.  Co.,  L. 

R.  2  Ch.  App.  201 

v.  Ogden,  22  N.  Y.  327  2. 

Garland  v.  Garland,  2  Vts.  Jr.  137 

Garneau  v.  Dozier,  100  U.  S.  7 
Garrett  v.  City  of   Memphis,  5  Fed. 

R.  860 
v.   Woodward,   2    Cranch  C.  C. 

190 
Garth  v.  Cotton,  1  Dick.  183;  1  Lea. 

Cas.  in  Eq.  (6th  ed.)  806  306, 

Gason  v.  Wordsworth,   2   Ves.   Sen. 

336 
Gass  v.  Stinson,  3  Sumner,  98 
Gause  v.  Perkins,  3  Jones'  Eq.  (N.  C.) 

177 


225 

273 

339 

387 

615 

66,  285 

15 


567 
514 
139 
231 
127, 
137 
443, 
557 
188 

14 
535 

418 
536 

206 

543 

4 

291 
64 

131 

9 
133 

199 

156 
449 
380 
341 

357 
408 
379, 
380 
607 

357 

424 

307 

433 
430 

309 


Gavin  v.  Vance,  33  Fed.  R.  84    30,  570, 

575 
616 


Gay  v.  Parpart,  101  U.  S.  391 
Gaylord  v.  Fort  Wayne,  M.  &  C.  R. 

R.  Co.,  6  Biss.  286 
Gaylords  v.  Kelshaw,  1  Wall.  81     99, 
Gee  v.  Pritchard,  2  Swanst.  402 
Geldard  v.  Hornby,  1  Hare,  251 
Gelpcke  v.  Dubuque,  1  Wall.  175 

Gelston  v.  Hoyt,  3  Wheat.  240 
Georgetown  v.  Alexandria  Canal  Co., 

12  Pet.  91 
Georgia  v.  Atlantic  &  G.  R.  R.  Co., 

3  Woods,  434 

v.  Brailsford,  2  Dall.  402 

v.  Grant,  6  Wall.  241        77,  150, 

v.    Stanton,   6  Wall.  50    16,77, 

137, 
Georgia  (Governor  of)  v.  Madrazo,  1 

Pet.  124 
Germain  v-  Mason,  12  Wall.  259 
Gernon  v.  Boecaline,  2  Wash.  130 

393 

v. ,2  Wash.  199 

Geyger  v.  Geyger,  2  Dall.  332 
Giant  Powder  Co.  v.  California  V.  P. 

Co.,  5  Fed.  R.  197  514,515, 
v.  Safety  N.  P.  Co.,  19  Fed.  R. 

509  188, 
Gibbins  v.  Mainwaring,  9  Sim.  77 
Gibbons  &  Ogden,  6  Wheat.  448 
Gibbs  v.  Clagett,2  Gill  &  J.  (Md.)  14 
v.  David,  L.  R.  20  Eq.  373    347, 

Gibson  v.  Bruce,  108  U.  S.  561 

v.  Chouteau,  13  Wall.  92 

v.  Lewis,  11  Phila.  (Pa.)  476 

-v.  Martin,  8  Paige  (N.  Y.),481 

v.  Shufeldt,  122  U.  S.  27         24, 

Gibson  v.  Smith,  2  Atk.  182 

v.  Van  Dresar,  1  Blatchf.  532 

v.  Whitehead,  4  Madd.  241 

Gier  v.  Gregg,  4  McL.  202  227, 

Gilbert  v.  Endean,  L.  R.  9  Ch.  D.  259 

v.  Gilbert,  2  Paige  (N.  Y.),  603 

v.  Lewis,  1  De  G.  J.  &  S.  38 

Gilbert  &  15.  Manuf.  Co.  v.  Bussing, 

12  Blatchf.  426 
Gillespie  v.  Moon,  2  Johns.  Ch.  (N.  Y.) 

585 
Gillet  v.  Moody,  3  N.  Y.  479 
Gihnan  v.  Perkins,  7  Fed.  R.  887 
Gilpins  v.  Consequa,  Pet.  C.  C.  85  ;  3 

Wash.  184  429,  430, 

Gindrat  v.  Dane,  4  Cliff.  200 
Gintcr  v.  Kinney   Tobacco   Co.,   12 

Fed.  R.  782 
Gist  v.  Davis,  2  Hill  Ch.  (S.  C.)  335 
Gittings  v.  Crawford,  Taney's  Dec.  1 
Gladdonw.  Stoneman,  1  Madd.  143,  n. 
Glassington  v.  Thwaites,  2  Russ.  458 


19 
446 
298 
472 
444, 
558 
614 

308 

372 
20 

537 
78, 

321 

76 
599 
389, 
394 
209 
553 

516 

242 
378 
614 
126 
373, 
379 
573 
197 
306 
378 
596, 
597 
332 
333 
188 
241 
522, 
527 
499 
116 

333 

125 

370 

11 

431 

13 

318 

199 

5 

343 

225, 
228 


xlii 


TABLE    OF    CASES. 
[References  are  to  pages.] 


Glazbrook  t\  Gillatt,  9  Bcav.  492  292 

Glegg  v.  Legh,  4  Madd.  193  173,  177, 

186,  242 


Glen  v.  Gibson,  9  Barb.  (N.  Y.)  G34 
Glenn  i\  Soule,  22  Fed.  E.  417 

v.  Sumner,  132  U.  S.  152 

Glossop  v.  Harrison,  G.  Cooper,  61; 

3  Ves.  &  B.  l:J4 
Gloucester  Ferry  Co.  v.  Pennsylvania, 

114  II.  S.  196 
Gloucester  Ins.   Co.   v.   Younger,   2 

Curt.  322 
Glyn  v.  Soares,  1  Y.  &  C.  644 
Glynn  v.  Houston,  1  Keen,  329 
Godbolt  v.  Watts,  2  Anst.  543 
Goddard  v.  Wilde,  17  Fed.  R.  845 
Godden  v.  Kimmell,  99  U.  S.  201 


468 
370 
556 

383 

570 


611 
82 
417 
139 
319 
10, 176, 
197 

Godfrey  v.  Terry,  97  U.  S.  171  174 

Gold  W.  &  W.  Co.  v.  Keyes,  96  U.  S. 

199  572,  573 

Gold  &  Silver  O.   S.  Co.  v.  United 

States  D.  O.  Co.,  6  Blatcbf.  307         218 
Gold  &  Stock  Tel.  Co.  v.  Fearce,  19 

Fed.  R.  419  196 

Goldsmith  v.   Gilliland,   22   Fed.   R. 

865  132,  176 

Goldstein  v.  New  Orleans,  38  Fed.  R. 

626  586 

Good  v.  Blew itt,  13  Ves.  397  90,  239 

Good  Hope  Co.  v.  Railway  B.  F.  Co., 

22  Fed.  R.  635  154 

Goodman  v.  Whitcomb,  1  Jac.  &  W. 

589  343,  378 

Goodrich  v.  Pendleton,  3  Johns.  Ch. 
(N.  Y.)  520  499 

v.  United  States,  35  Fed.  R.  193     485 

Goodwin  v.  Fox,  129  U.  S.  601  411 

Goodyear  v.  Bourn,  3  Blatchf.  266        237 

v.  Chaffee,  3  Blatchf.  268  162 

v.   Mullee,  3  Fisher's  Pat.  Cas. 

420  332 

v.   Providence    Rubber    Co.,    2 

Cliff.  351 ;  2  Fisher's  Pat.  Cas.  499    447, 

449 

v.  Sawyer,  17  Fed   R.  2  482 

v.  Toby,  6  Blatchf.  130         196,  202, 

206 
Goodyear  D.  V.  Co.  v.  Folsom,  3 Fed. 
R.  509  293,  329 

v.  Osgood,  2  Bann.  &  A.  Pat.  Cas. 

529 ;  13  Off.  Gaz.  325  482 

Gordon,  Ex  parte,  1  Black,  503      533,  598 

v.  Calvert,  2  Sim.  253 

v.  Cheltenham  Ry.  Co.,  5  Beav. 


229 


Gilfoil,  99  U.  S.  108 
—  v.  Gordon,  3  Swanst.  400 

v.  Hobart,  2  Sumner,  401 

v. ,  2  Story,  243 

v,  St.  Paul  Harvester  Works,  23 

Fed.  R.  147 

Gorham   v.   Gorham,    3    Barb.    Ch. 
(X.  r.)  24 

Gorse  v.  Parker,  36  Fed.  R.  840 


333 

194 

114,  474 

6,8 


454 

184 

67 

482 


463 
3 


76 


228,  229 
212 
193 
536 
475 
5,390 
C. 
171 


Gottfried  v.  Crescent  Brewing  Co.,  22 

Fed.  R.  433 
Gould  v.  Okeden,  4  Bro.  P.  C.  198 
Governor   of  Georgia  v.  Madrazo,  1 

Pet.  124 
Grace  v.  American  Cent.  Ins.  Co.,  109 

U.  S.  278  437,  572 
Graffam  v.  Burgess,  117  U.  S.  180  238 
Graham,  Ex  part,-,  10  Wall.  511  533 
v.  Boston,  H.  &  E.  R.  R.  Co., 

118  U.  S.  161  27 

v.  Coape,  9  Sim.  93  228,  229 

v. ,  3  M.  &  Cr.  638 

v.  Mason,  4  Cliff.  88 

v.  Meyer,  4  Blatchf.  129 

v.  Norton,  15  Wall.  427 

v.  Railroad  Co.,  3  Wall.  704 

v.  Stucken,  4  Blatchf.  50 

Grahame  v.  Cooke,  1  Cranch  C. 

116 
Grand  Chute  v.  Winegar,  15  Wall. 

373  7,  18 

Grant  v.  Grant,  3  Russ.  598  393 

t,. (  5  Uuss.  189  394 

v.  Henry  Clay  Coal  Co.,  80  Pa. 

St.  208  405 
v.  Phoenix  L.  I.  Co.,  121  U.  S. 

105  123,  208 

v.  Raymond,  6  Pet.  218  214,  597 

Grattan  v.  Appleton,  3  Story,  755        478, 

479 
Graves  v.  Boston  M.  I.  Co.,  2  Cranch, 

419 
Gray  v.  Brignardello,  1  Wall.  627 

v.  Campbell,  1  Russ.  &  M.  323 

v.  Chaplin,  2  Sim.  &  S.  267  89 

v.  Chicago,  I.  &  N.  R.  R.  Co.,  1 

Woolw.  63         280,  281,  283,  294,  330, 

505 

v.  Haig,  13  Beav.  65  253 

v.  Howe,  108  U.  S.  12  591,  592 

v.  James,  Pet.  C.  C.  394  214 

v.  Larrimore,  2  Abb.  C.  C.  542       99 

v.  Munroe,  1  McL.  528 

Grayson  v.  Virginia,  3  Dall.  320 
Greatrex  v.  Greatrex,  1  De  G.  &  Sm. 

692 
Greeley  v.  Smith,  3  Storv,  658 
Green  v.  Barney,  19  Fed.  R.  420 

v.  Custard,  23  How.  484 

v.  French,  5  N.  J.  L.  J.  228 

v.  Hanberry,  2  Brock.  403 

v.  United  States,  9  Wall.  655 

v.  Watkins,  6  Wheat.  260 

v.  Winter,  1  Johns.  Ch.  (N.  Y.) 

359,  369 
Greene  v.  Bishop,  1  Cliff.  186        315,  462 

v.  Darling,  5  Mason,  201  4 

v.  Sisson,  2  Curt.  171  87,  96,  104 

Greene  Countv  v.  Daniel,  102  U.  S. 

187  "  636 

Greenleaf  v.  Queen,  1  Pet.  138  269 

Greenlee   v.   McDowell,  4  Ired.   Eq. 

(N.  C.i  481  520 

Greenough  v.  Gaskell,  1  M.  &  K.  100    177 


17 
474 

237 


550 
153 

325 
256 
197 

587 
483 
306 
410 
554 


60 


TABLE   OF   CASES. 
[References  are  to  pages] 


xliii 


Greenwalt  v.  Duncan,  16  Fed.  R.  35     132, 

251,  252 
Greenwood  v.  Atkinson,  5  Sim.  41(J      272 

v.  Churchill,  1  M.  &  K.  559  126 

v.  Freight  Co.,  105  U.  S.  13     20,  128 

Gregor  v.  Molesworth,  2   Ves.    Sen. 


109 
Gregory  v.  Hartley,  113  U.  S.  742 

v.  McVeigh,  23  Wall.  294 

v.  Molesworth,  3  Atk.  026 

Gregson  v.  Oswald,  1  Cox  Eq.  313 


519 
579 
614 
471 
257, 
258 
Grenfell  v.  Dean  of  Windsor,  2  Beav. 

544  387 

Gresley  r.  Mousley,  4  De  G.  &  J.  78  475 
Grew  v.  Breed,  12  Met.  (Mass.)  369  268 
Gridley  o.  Wynant,  23  How.  500  '  87,  96 
Griffin,  The,  4  Blatchf.  203  429 

v.  Merrill,  10  Md.  364  123 

Griffing  v.  Gibb,  2  Black,  519  198 

Griffith  y.  Griffith,  2  Ves.  Sen.  400  382 
Grimes  v.  French,  2  Atk.  141  136 

Grisar  v.  McDowell,  6  Wall.  363  73 

Griswold  v.  Hill,  1  Paine,  483       257,  261, 
264,  473,  474 
Groom  v.  Chambers,  2  Mont.  &  A. 

742  450 

Gross  v.  United  States  Mortgage  Co., 

108  U.  S.  477  615 

Gross  &  P.  Manuf.  Co.  v.  Gerhard,  8 

Reporter,  130  498 

Grote  v.  Bury,  1  W.  R  92  379 

Grubb  v.  Clayton,  2  Havw.  (N.  C.) 

378  199 

Grundy  v.  Young,   2  Cranch  C.   C. 

114  340 

Guilbert  v.  Hawles,  1  Ch.  Cas.  40  435 
Gumbel  v.  Pitkin.  113  U.  S.  545  610 

v. 124  U.  S.  131  28 

Gunnell  v.  Bird,  10  Wall.  304  265 

Gunther  v.   Liverpool,  L.  &  G.  Ins. 

Co.,  10  Fed.  R.  830  494 

Gupp  v.  Brown,  4  Dall.  410  429 

Guy  v.  Guy,  2  Beav.  460  66,  285 

Guyot  v.  Hilton,  32  Fed.  R.  743    398,  552 


Hale  v.  Continental  L.  I.  Co.,  12  Fed 
R.  359 

v. ,  16  Fed.  R.  718 

v.  ,  20  Fed.  R.  344 

v.  Frost,  99  U.  S.  389 


162 
220 
164,  220 
349,  350, 
351 


H. 


Hack  v.  Chicago  &  G.  S.  Ry.  Co.,  23 

Fed.  R.  356  571 

Haff  v.  Spicer,  3  Caines  (N.  Y. ),  190     408 
Hagan  v.  Lucas,  10  Pet.  400  11 

v.  Walker,  14  How.  29  83 

Hagood  v.  Southern,  117  U.  S.  52     72,  76 
Haight  v.  Proprs.  of  Morris  Aqueduct, 

4  Wash.  601  223,  406 

Haines  v.  Carpenter,  1  Woods,  262       123 

v. ,91  U.  S.  254  303 

v.  McLaughlin.  29  Fed.  R.  70       491 

Hake  v.  Brown,  37  Fed.  R.  783  470 

Hakes  v.  Burns,  40  Fed.  R.  33       571,  578 
Halilerman    v.   Halderman,    Hempst. 
407  185 


Hales  v.  Sutton,  1  Dick.  26 

Hall  v.  Hoddesdon,  2  P.  Wms.  162 

v.  Maltbv,  (J  Price,  240 

v.  Union    Pacific   R.    R.   Co.,  3 

Dill.  515 
Hallett  v.  Hallett,  2  Paige  (N.  Y.),  15 

v. ,  2  Paige  (N.  Y.),  432 

v.  Sutton,  12  Sim.  145,  n. 

Halsey  v.  Brotherhood,  45  L.  T.  n.  s. 

640 

v.  Carter,  6  Rob.  (N.  Y.)  535 

Haly  v.  Goodson,  2  Meriv.  77 
Haniersley  v.  Lambert,  2  Johns.  Ch. 

(N.  Y.)  508 
Hamilton  v.  Accessory  Transit  Co., 

26  Barb.  (N.  Y.)  46 

v.  Brewster,  2  Moll.  407 

v.  Chouteau,  6  Fed.  R.  339 

v.  Nevada  G.  &   S.  M.  Co.,  33 

Fed.  R.  502  243 

v.  Walsh,  23  Fed.  R.  420  303 

Hammacher  v.  Wilson,  32  Fed.  R.  796  460 
llanimerschlag  Manuf.  Co.  v.  Judd, 

26  Fed.  R.  292 
Hammock  v.  Loan  &  Trust  Co.,  105 

U.  S.  77 
Hammond  v.  Cleaveland,  23  Fed.  R.  1 
Hancock  v.  Walsh,  3  Woods,  351 
Handford  v.  Storie,  2  Sim.  &  S.  196 


155 
415 
117 

537 

88 

290 

155 

324 
283 
306 

64 

345 

382 

11 


406 


473 

34 

98 

89, 

434 


Handy  v.  Cleveland  &  M.  R.  R.  Co., 
31  Fed.  R,  689  374,385,386 


Hannah  v.  Hodgson,  30  Beav.  19 
Hannewinkle  v.  Georgetown,  15  Wall. 

548 
Hanover    Nat.    Bank    v.   Smith,    13 

Blatchf.  224 
Hanrick  v.  Patrick,  119  U.  S.  156 
Hans  v.  Louisiana,  24  Fed.  R.  55 
Hanson  v.  Gardiner,  7  Ves.  305    309, 
Hapgood  v.  Hewitt,  119  U.  S.  226 
Hardcastle  v.  Smithson,  3  Atk.  246 
Hardeman  v.  Harris,  7  How.  726 
Hardenberg  v.  Ray,  33  Fed.  R.  812 


Hardin  v.  Boyd,  113  U.  S.  756 

Harding,  Ex  parte,  120  U.  S.  782 
v.  Handy,  11  Wheat.  103 


253 

16 

570 
599 

77 

18 

91 

218 

30 

118,  234. 

237,  238 

543 

81,  447, 

462 

139 

497 


v.  Pingey,  10  Jur.  n.  s.  872 

Hare  v.  Rose,  2  Ves.  Sen.  558 
Hargrave  v.  Hargrave,  8  Beav.  289      450 
llarkness  v.  Hyde,  98  U.  S.  47U  102 

Harland  v.  Bankers'  &  M.  Tel.  Co..  32 

F\;d.  R.  305  178,  478 

v. ,  3:5  Fed.  R.  199  8139 

v.  United  Lines  Tel.  Co.,  40  Fed. 

R.  308  549 

Barman  v,  Junes,  Cr.  &  Ph.  299  3U'J 


xliv 


TABLE    OF   CASES. 
[References  are  to  pages.] 


Harmon,  Ex  parte,  131  U.  S.,  App. 

LXVIL 
Harpending  ^.Reformed  P.D.  Church, 

16  Pet.  455 
Harper  v.  Hill,  35  Miss.  63 
Harris  v.  Barber,  129  U.  S.  36(5     540, 
v.  Delaware,  L.,  &  W.  R.  R.  Co., 

18  Fed.  R.  833 

v.  Bollard,  3  P.  Wms.  348 

v.  Elliott,  10  Pet.  25 

v.  Hess,  10  Fed.  R.  263 

v.  Johnston,  3  Craneh,  311 

v.  Wall,  7  How.  693       424,  425,  427 

Harrison  v.  Hogg,  2  Ves.  Jr.  323         133, 

181 

v.  Nixon,  9  Pet.  483 

v.  Rowan,  4  Wash.  202 


537 

197 
116 
596 


264 

597 

530 

84 


114 

13,  67,  79, 

87,  106 

437 


545 
539 

369 

281 


v.  Urann,  1  Story,  64 

Harrison's  Case,  1  Craneh  C.  C.  159 
Harshman  i».  Knox  County,  122  U.  S. 

306 
Hart  v.  Barney  &  S.  Manuf.  Co.,  7 

Fed.  R.  543 

v.  Small,  4  Paige  (N.  Y.),  551 

Hartell  v.  Tilghman,  99  U.  S.  547   25,  446 
Harter  v.  Kernoehan,  103  U.  S.  562       26, 

95,  100 
Hartland  v.  Dancocks,  5  De  G.  &  Sm. 

561  450 

Hartman  v.  Greenhow,  102  U.  S.  672   614 
Hartog  v.  Memory,  116  U.  S.  588         436, 

437,  438 
Hartwell  v.  Townsend,  6  Bro.  P.  C. 


107 


519 
102 
344 

177 

77 


Harvey  v.  Cooke,  4  Russ.  35 

v.  Lord,  10  Fed.  R.  236 

v.  Morris,  Rep.  t.  Finch,  214 

v.  Virginia,  20  Fed.  R.  411 

Harwood    v.  Railroad  Co.,  17   Wall. 

78  100,  527 

Hassall  v.  Wilcox,  115  U.  S.  598  596 

v. .  130  U.  S.  493  354 

Hatch  v.  Dana,  101  U.  S.  205  98 
v.  Indianapolis  &  S.  R.  R.  Co., 

9  Fed.  R.  856  461,  462 

Hatfield  v.  Bushnell,  1  Blatchf.  393      554 
Hathaway  v.  Roach,  2  Woodb.  &  M. 

63  477,  492,  493 

v.  Scott,  11  Paige  (N.  Y.),  173      224 

Hat  Sweat  Manuf.  Co.  v.  Reinoehl, 

102  N.  Y.  167  25 

Havemeyer  v.  Iowa  County,  3  Wall. 

294  558,  597 

Hawes  v.  Bamford,  9  Sim.  653  407 

v.  Oakland,  104  U.  S.450  20,  128,  299 

Hawke  v.  Kemp,  3  Beav.  288  285 

Hawkins  v.  Crook,  2  P.  Wms.  556  164, 166 

v.  Glenn,  131  U.  S.  319  558 

v.  Luscombe,  2  Swanst.  375  78 

v.  Willbank,  4  Wash.  285  499 

Hawley  v.  Bennett,  4  Paige  (N.  Y.), 

163  257 
v.  Donnelly,  8   Paige  (N.  Y.), 

415  407 


Hax  v.  Caspar,  31  Fed.  R.  499  571 

Hayden  v.  Androscoggin  Mills,  1  Fed. 
R.  93  154 

v.  Oriental  Mills,  15  Fed.  R.  605     11 

Hayes  v.  Dayton,  8  Fed.  R.  702    125,  130, 


v.  Fischer,  102  U.  S.  121 

v.  Leton,  5  Fed.  R.  521 

Hayne  v.  Hayne,  3  Rep.  in  Ch.  19 
Hayward  v.  Andrews,  106  U.  S.  672 
Hazard  v.  Credit  Mobilier  of  Amer., 

38  Fed.  R.  195 
v.  Durant,  19  Fed.  R.  471 


173,  208 

467,  507 

341 


250 
17 


387 
68,  96, 
370 
516 
505 


Head  v.  Godlee,  Johnson,  536 

Hearn  v.  Tenant,  14  Ves.  136 

Heath  v.  Erie  Ry.  Co.,  8  Blatchf.  347    96, 

97,  98,  173,  174 

v. ,  9  Blatchf.  316    4,  8, 156, 250, 

253,  418,  431 

v.  Wright,  3  Wall.  Jr.  141  318 

Hebert  v.  Mutual  L.  I.  Co.,  12  Fed. 

R.  807  13,  125 

Heckman  v.  Mackey,  32  Fed.  R.  574    289 
Hefner  v.  Northwestern  L.  I.  Co.,  123 

U.  S.  747  84,  126 

Heidecker   v.   Red   Star  Line    S.   S. 

Co.,  32  Fed.  R.  706  586 

Heidritter  v.  Elizabeth  Oil  Cloth  Co., 

112  U.  S.  294  11,  12 

Heilman  v.  Union  Canal  Co.,  37  Pa. 

St.  100  309 

Heine  v.  Levee  Comm'rs,  19  Wall-  655     16 
Hemingway   v.    Stansell,   106   U.  S. 

399  261,  270 

Henderson  v.  Meggs,  2  Bro.  C.  C.  127  156 
Hendrickson  v.  Chicago,  R.  I.  &  P. 

R.  R.  Co..  22  Fed.  R.  569  586 

Hening  v.  United  States  Ins.  Co.,  2 

Dill.  26  557 

Henley  v.  Philips,  2  Atk.  48  496,  497 

Henry  v.  Ricketts,  1  Craneh   C.  C. 

680  411,  412,  508 
v.  Travelers'  Ins.  Co.,  34  Fed.  R. 

258  513 

y. 1  35  Fed.  R,  15  41 3 

Henshaw  v.  Miller,  17  Flow.  212  554 

v.  Wells,  9  Humph.  (Tenn.)  568    379 

Henthorn  v.  Doe,  1  Blackf.  (Ind.)  157     405 
Hentig  v.  Page,  105  U.  S.  219  467 

Hepburn  v.  Auld,  5  Craneh,  262  324 

v.  Dunlop,  1  Wheat.  179  324 

v.  Ellzey,  2  Craneh,  445  26 

Herbert  v.  Wren,  7  Craneh,  370  4 

Heriot  v.  Davis,  2  Woodb.  &  M.  229     99, 

101 
Herndon  i\  Ridgway,  17  How.  424  145, 156 
Herrick  v.  Grand  Trunk  Ry.  Co.,  7 

U.  C  L.  J.  240  299,  345 
Herring  ;;.  Clobery,  Cr.  &  Ph.  251  516 
Hervey  v.  Fitzpatrck,  Kay,  421  343 
v.  Illinois  Midland  Ry.  Co.,  28 

Fed.  R.  169  367 
v.  ,  U.  S.  C.  C,  S.  D.  111., 

June  10,  1886  464 


TABLE   OF   CASES. 
[References  are   to   pages.] 


xlv 


Hervey  v.  Smith,  1  Kay  &  J.  389  324 

Hewett  v.  Norton,  1  Woods,  68  209 

Hewitt  v.  Filbert,  116  U.  S.  142  604 

Heyman  v.  Uhlman,  34  Fed.  11.  868     163 
Heyn  v.  Heyn,  Jacob,  49         165,  168,  457 


198 
382 
89 
606 
309 
344,  373 
244 


119 

496 

317,  318 

136 


196 
371 
306 


Heys  v.  Astley,  9  L.  T.  n.  s.  356 
Hibbert  v.  Hibbert,  3  Meriv.  681 
Hichens  v.  Congreve,  4  Russ.  562 
Hiekox  v.  Elliott,  28  Fed.  R.  117 
Hicks  v.  Compton,  18  Cal.  206 

v.  Hicks,  3  Atk.  274 

v.  Otto,  17  Fed.  R.  539 

v. ,  22  Blatchf.  122  515 

v.  Raincock,  1  Cox  Eq.  40  180 

v.  Wrench,  Madd.  &  G.  93  496 

Hickson  v.  Lombard,  L.  R.  1  H.  L. 

326 
Hide  v.  Haywood,  2  Atk.  126 
Hier  v.  Abrahams,  82  N.  Y.  519 
Hiern  v.  Mill,  13  Ves.  118 
Hi?by  v.  Columbia  Rubber  Co.,  18 

Fed. R.  601 
Higgins,  In  re,  27  Fed.  R.  443 

v.  Jenks,  3  Ware,  17 

Higinbotham  v.  Burnet,  5  Johns.  Ch. 

(N.  Y.)  184  173,  418 

Hildyard  v.  Cressy,  3  Atk.  303  238 

Hiles  v.  Case,  14  Fed.  R.  141 ;  9  Biss. 

549  352 

v.  Moore,  15  Beav.  175  379 

Hill  v.  Binney,  6  Ves.  738  395 

v.  Bonaffon,  2  W.  N.  C.  (Pa.)  356  176 

v.  Rimell,  8  Sim.  632  283 

v.  Smith,  32  Fed.  R.  753  479 

v.  Thompson,  3  Meriv.  622     31 1, 312, 

313,  330 

v.  United  States,  9  How.  386         322 

Hills  v.  Exchange  Bank,  105  U.  S.  319  301 
v.  Richmond  &  D.  R.  R.  Co.,  33 

Fed. R.  81  577,  578 

Hilton  v.  Barrow,  1  Ves.  Jr.  284  248 

Himely  v.  Rose,  5  Cranch,  313  623 

Hinckley  v.  Gilman,  C.  &  S.  R.  R. 

Co.,  94  U.  S.  467  384,  598 

v.  Morton,  103  U.  S.  764  616 

v.  Railroad  Co.,  100  U.  S.  153     372, 

373,  384,  385,  589 
Hinde  v.  Morton,  2  Hem.  &  M.  368  439 
Hipp  v.  Babin,  19  How.  271  5,  7,  16 

Hitner  v.  Suckley,  2  Wash.  465  156 

Hoadley  v.  San  Francisco,  94  U.  S.  4  534 
Hobhouse  v.  Courtney,  12  Sim.  140     155, 

156 
Hobson  v.  McArthur,  16  Pet.  182  270 
Hodge  v.  Hudson  River  R.  R.  Co.,  6 

Blatchf.   85;  3  Fisher's  Pat.  Cas. 

410  468 
v.  North  Mo.  R.  R.  Co.,  1  Dill. 

104  174,  175,  181 

Hodges  v.  Mulliken,  1  Bland   (Md.), 

503  476 

v.  Smith,  1  Cox  Eq.  279  145 

Hodgkin  v.  Lotigden,  8  Ves.  2  174 
Hodson  v.  Ball,  11  Sim.  459  107 
v.  Coppard,  29  Beav.  4                  335 


315 
143 


Hoe  v.  Boston  Daily  Advertiser  Co., 

14  Fed.  R.  914  333 

v.  Kahler,  27  Fed.  R,  145  607 

v.  Wilson,  9  Wall.  501     88, 100,  104, 

105 
Hoffman  v.  Duncan,  18  Jur.  69     380,  381 

v.  Postill,  L.  R.  4  Ch.  App.  673     227 

Hogg  v.  Kirby,  8  Ves.  215 

v.  Scott,  L.  R.  18  Eq.  444 

Hoggart  v.  Cutts,  1  Cr.  &  Ph.  197 
Hohorst  v.  Hamburg  Amer.  Packet 

Co.,  38  Fed.  R.  273        30,  153,  154,  162 
Holbrook  v.  Worcester  Bank,  2  Curt. 

244 
Holcombe  v.  Johnson,  27  Minn.  353 
Holden  v.  Hearn,  1  Beav.  445 
Holderness  v.  Rankin,  2  De  G.  F.  &  J 

258 
Hole  v.  Barlow,  4  C.  B.  n.  s.  334 
Hoi  ford  v.  Yate,  1  K.  &  J.  677 
Holkirk  v.  Holkirk,  4  Madd.  50 
Holladay  Case,  The,  28  Fed.  R.  117 
Holland  v.  Challen,  110  U.  S.  15 
Hollen,  The,  1  Mason,  431 


216 
374 
223 

247 
308 
472 
435 
606 
9,  558 
611 
Hollingshead's  Case,  1  P.  Wms.  742    265 
Hollingsworth  v.  Duane,  Wall.  C.  C. 
77  502,  505 

„.  __  Wall.  C.  C.  141  505 

Hollister  v.  Benedict  &  B.  Manuf.  Co., 

113  U.  S.  59  69,  322 

Holmes  v.  Sheridan,  1  Dill.  351  551 

v.  Sherwood,  16  Fed.  R.  725  ;  3 

McCra.  405  370,  371 

Homan  v.  Shiel,  2  Jones  (Irish),  164  196 
Home  Ins.  Co.  v.  Stanchfield,  1  Dill. 

424  8,  17 

Hone  v.  Dillon,  29  Fed.  R.  465  579 

Hood  v.  Aston,  1  Russ.  412  305 

v.  Clapham,  19  Beav.  90  243 

v.  Inman,  4  Johns.  Ch.  (N.  Y.) 

437  115,217 

Hook  v.  Dorman,  1  Sim.  &  S.  227      178, 

182 

v.  Payne,  14  Wall.  252  _  104 

Hooper  v.  Winston,  24  111.  353  384 

Hoover  v.  Montclair  &  G.  L.  R.  R. 

Co.,  29  N.  J.  Eq.  4  365,  366 

Hop  Bitters  Manuf.  Co.  v.  Warner, 

28  Fed.  R.  577  513 

Hope  v.  Hope.  4  De  G.  M.  &  G.  328  283 
Hopkins    v.    Worcester   &  B.  Canal 

Co.,  L.  R.6Eq.  437  357 

Hopkirk  v.  Page,  2  Brock.  20  85 

Horn  v.  Lockhart,  17  Wall.  570  96 

Hornor  v.  Henning,  93  U.  S.  228  8,  98 
Horsburg  v.  Baker,  1  Pet.  232  238,  258 
Horton  v.  White,  84  N.  C.  297  343 

Hottenstein  v.  Conrad,  9  Kan.  435  377 
Hough  v.  Railway  Co.,  100  U.  S.  213 

557 
Houlditch  v.  Marquis  Donnegall,  1 

Sim.  &  S.  491  271 

House  v.  Mullen,  22  Wall.  42  107,  199 
Houser  v.  Clayton,  3  Woods,  273  573 

Houston  v.  Moore,  3  Wheat.  433  614 


xlvi 


TABLE    OF   CASES. 
[References  are  to  pages.] 


Houston  &  T.  C.  R.  Co.  v.  Shirley, 

111  U.  S.  358  568,  573,  575 

Hovey  v.  Stevens,  3  Woodb.  &  M.  17    477 
Howard   v.  Kailway  Co.,  101   U.   S. 

837  96,  511 

v.  Rhodes,  1  Keen,  581  496 

Howards  v.  Selden,  5  Fed.  R.  465  4 

Howe  v.  Deuel,  43  Barb   (N.  Y.)  504     344 

v.  Duppa,  1  Ves.  &  B.  511 

— —  v.  Morton,  1  Fisher's  Pat.  Cas. 

586 
Howe   Machine   Co.  v.  Edwards,  15 

Blatchf.  402 
Howell  v.  Lord  Coningsby,    1  Fowl. 

Ex.  Pr.  161 
v.  Western  R.  R.  Co.,  94  U.  S. 

463 
Howland  v.  Soule,  Deady,  413 
Hoxie  v.  Carr,  1  Sumner,  173      3,  97,  118, 
119,257,258,  276 
Hovle,  In  re,  12  Chic.  L.  N.  279 ;  9 

Am.  L.  Rec.  65  545 

Hoyt,  Ex  parte,  13  Pet.  279  535,  536 


180 

311 

556 

510 

472 
322 


v.  Hammekin,  14  How.  346 

v.  Hovt,  27  N.  J.  Eq.  399 

Hubbard  v.  Bellew,  3  Fed.  R.  447 

v.  Turner,  2  McL.  519  211, 

Hubbell  v.  DeLand,  14  Fed.  R.  471 


431 
119 
11 
252 
189, 
200 


v.  Warren,  8  Allen,  173  89 

Hmlgins  v.  Kemp,  18  How.  530  604 

Hudson  v.  Guestier,  7  Cranch,  1  622 

v.  Hudson,  3  Rand.  (Va.)  117        251 

v.  Maddison,  12  Sim.  416       122,  336 

Huggins  v.  York  Bldg.  Co.,  2  Atk. 

44 ;  2  Eq.  Cas.  Abr.  3  195,  259,  271 
Hugh  i'.  McRae,  Chase's  Dec.  466  18,  345 
Hughes,  Ex  parte,  114  U.  S.  548  495 
v.  Blake,  6  Wheat.  453         209,  210, 

v. ,  1  Mason,  515  210 

v.  Clerk,  6  Hare,  195  418 

v.  Jones,  3  De  G.  F.  &  J.  307       446 

-^—  v. ,  26  Beav.  24  513 

v.  Morden  College,  1  Ves.  Sen. 

188  301,  302 

v.  United  States,  4  Wall.  232        109 

Huguenin  v.  Baseley,  15  Ves.  180  4 

Huidekoper  v.  Locomotive  Works,  99 

U.  S.  258  349,  351 

Hull  v.  Dills,  19  Fed.  R.  657  8,  11 

Hullett  v.  King  of  Spain,  2  Bligh  N. 

R.  31  68 

Hulme  v.  Tenant,  1  Bro.  C.  C.  16  80 

Humes  v.  Scruggs,  94  U.  S.  22  232 

Hummel  v.  Moore,  25  Fed.  R,  380  586 
Humphrey,  Ex  parte,  2  Blatchf.  228  411 
Humphreys  v.  Humphreys,  3  P.  Wms. 

349  240 

„. ,  3  p.  Wms.  395  205 

v.  Ingledon,  1  P.  Wms.  752  132 

v.  Roberts,  Seton's  Decrees  (4th 

ed.),  173  335 

v.  Tate,  4  Ired.  Eq.  (N.  C  )  220     131 

Humphrys  v.  Moore,  2  Atk.  108   496,  497 


Hung  Hang,  Ex  parte,  108  U.  S.  552 
Hunt  v.  Danforth,  2  Curt.  592 

v.  Jackson,  5  Blatchf.  349        68, 

v.  Lever,  5  Ves.  147 

v.      Bousmanier's     Adm'rs,     8 

Wheat.  174 

v. ,  1  Pet.  1 

v.  Wickliffe,  2  Pet.  201 

Hunter  v. ,  6  Sim.  429 

v.    International   R.   I.    Co.,  28 

Fed.  R.  842 

v.  Le  Conte,  6  Cow.  (N.  Y.)  728 

v.     Town     of      Marlboro',     2 

Woodb.  &  M.  168 

v.  United  States,  5  Pet.  172 

Huntington  v.  Palmer,  104  U.  S.  482 

v. ,  8  Fed.  R.  449 

Huntress  v.  Epsom,  15  Fed.  R.  732 

Hurd  v.  Case,  32  111.  45 

v.  Elizabeth,  41  IS'.  J.  L.  1         G8 

v.  Moiles,  28  Fed.  R.  897 

Hurlburd  v.  Freelove,  3  Wis.  537 
Hurst,  Ex  parte,  1  Wash.  186 
Hurt  v.  Hollingsworth,  100  U.  S.  100 
Huskine  v.  Cincinnati,  N.  O.  &  T.  P. 
Ry.  Co.,  37  Fed.  R.  504      575,  577, 

Hutchinson  v.  Brock,  11  Mass.  119 

v.  Green,  6  Fed.  R.  833 

v.  Horner,  9  Jur.  615 

Hyde  v.  Folger,  4  McL.  255 

v.  Forster,  1  Dick.  102 

v. ,  1  Dick.  132 

v.  Ruble,  104  U.  S.  407         568, 

v.  Woods,  94  U.  S.  523 

Hylton  v.  Morgan,  6  Ves.  293 
Hyman  v.  Chales,  12  Fed   R.  855 

v.  Wheeler,  33  Fed.  R.  329 

Hyslop  v.  Hoppock,  5  Ben.  447 


T. 


Iasigi  v.  Brown,  1  Curt.  401  553 

Ide  v.  Ball  Engine  Co.,  31  Fed.  R. 

835  250 

Ilchester  (Earl  of),  Ex  parte,  7  Ves. 

348  474 

Imperial  Refinine;  Co.  v.  Wyman,  38 

Fed.  R.  574  530,  590 

India  Rubber  Comb  Co.  v.  Phelps,  8 

Blatchf.  85  244 

Indiana  Southern  R.  R.  Co.  v.  Liver- 
pool, L.  &  G.  Ins.  Co.,  109  U.  S. 

168  249 

Indianapolis  &  St.  L.  R.  R,  Co.  v. 

Horst,  93  U.  S.  291  529,  555,  556, 

557  559 
Infanta,  The,  Abb.  Adm.  263  '  430 

Ingham  v.  Pierce,  37  Fed.  R.  647  483 

Ingilby  v.  Shafto,  33  Beav.  31  417 


541 

13 

370 

283 

3 
3,4 
106 
293 

483 
409 

477 
12 
20, 
128 
339 

495, 
530 
252 

,370 

12 

515 

1G0 

585 

578, 
579 
64 
11 
283 
101 
155 
259 

570, 
571 
356 
326 
532 
124 
152 


TABLE    OF   CASES. 
[References  are  to  pages.] 


xlvii 


Innes  v.  Lansing,  7  Paige   (N.  Y.), 

583  89 

Insurance    Co.   v.   Bailey,   13    Wall. 

616  7,  17 

v.  Boon,  95  U.  S.  117  555 

v.  Brune,  96  U.  S.  588  193,  194 

v.  Comstock,  16  Wall.  258  534 

v.  Dunn,  19  Wall.  214  574 

v.  Morse,  20  Wall.  445  570 

Investment  Co.  v.  Ohio  &  N.  W.  R. 

Co.,  36  Fed.  R.  48  366 

Iowa  &  Minn.  Construction  Co.,  In  re, 

10  Fed.  R.  401  11 

Irons  v.  Manufacturers'  Nat.  Bank,  17 

Fed.  R.  308  113 

v. 6  Biss.  301  344 

Irwin  v.  Dixion,  9  How.  10  308 

Isnard  v.  Cazeaux,  1  Paige  (N.  Y.), 

39  281 

Ives  v.  Grand  Trunk  Ry.  Co.,  35  Fed. 

R.  176  559 

Ivinson  v.  Hutton,  98  U.  S.  79  14 


J. 


Jacklin  v.  Wilkins,  6  Beav.  607 
Jackson,  In  re,  9  Fed.  R  493 

v.  Allen,  132  U.  S.  27      573,  587, 

v.  Ashton,  8  Pet.  148  113, 

v.  Cator,  5  Ves.  688 

v.  Ivimey,  L.  R.  1  Eq.  693 

v.  Jackson,  2  Hogan,  238 

v.  Oglander,  2  Hem.  &  M.  465 

v.  Petrie,  10  Ves.  164  389, 

v.  Stiles,  1  Cow.  (N.  Y.)  134 

v.  Strong,  1  McClel.  245 

v.  Virgil,  3  Johns.  (N.  Y.)  540 

Jacobs  v.  Richards,  18  Beav.  300 
Jacobson  v.  Allen,  12  Fed.  R.  454 

369, 
Jacques  v.  Collins,  2  Blatchf.  23 
Jaffray,  Ex  parte,  1  Low.  321 
Jaff rey  v.  Brown,  29  Fed.  R.  476     463, 
James  v.  Atlantic  Delaine  Co.,  3  Cliff. 

614 

v.  Campbell,  104  U.  S.  356      69, 

Jamieson  v.  Willis,   1  Cranch  C.  C. 

566 
Janeway  v.  Green,  16  Abb.  Pr.  (N.  Y.) 

215,  n. 
Jarmon  v.  Wis  wall,  9  C.  E.  Gr.  (N.  J.) 

68 
Jarrold  v.  Houlston,  3  Kay  &  J.  708 
Jefferson  v.  Driver,  117  U.  S.  272 
Jefferson  Branch  Bank  v.  Skelly,  1 

Black,  436 
Jefferys  v.  Baldwin,  Ambl.  164 

v.  Smith,  1  Jac.  &  W.  298     343, 

Jeffries  v.  Laurie,  27  Fed.  R.  195    502 
Jenkins,  Er  pari,,  2  Wall.  C.  C.  521 
v.  Eldredge,  3  Story,  181      117, 


-,  3  Story,  299 


270,  273, 
516, 


283 
338 
590 
114 
332 
436 
361 
198 
392 
284 
238 
408 
247 
18, 
370 
553 
497 
465 

410 

322 

425 

343 

514 
315 

579 

443 
174 
356 

,504 
541 

194, 
397 
515 
519 


Jenkins  v.  Greenwald,  1  Bond,  126  ;  2 

Fisher  Pat.  Cas.  37 
v.  Smith,  57  How.  Pr.  (N.  Y.) 

171 
Jenkinson  v.  Royston,  5  Price,  496 
Jennings  v.  Dolan,  29  Fed.  R.  861 
v.  Nugent,  1  Molloy,  134 


322 

160 
211 
462 
145,  146, 
255 

v.  Pearce,  1  Ves.  Jr.  447  185 

v.  Philadelphia  &  R.  R.  R.  Co., 

23  Fed.  R.  509  346,  347 

v.  Pierce,  15  Blatchf.  12  213 

v.  Simpson,  1  Keen,  404  476 

Jenour  v.  Jenour,  10  Ves.  562        474,  475 
Jerman  v.  Stewart,  12  Fed.  R.  271       483, 

495,  498 

Jerome  v.  Mc  Carter,  94  IT.  S.  734    83,  84, 

192,  365,  366,  367 

v. ,  21  Wall.  17  606 

v.  Ross,  7  Johns.  Ch.  (N.  Y.)  315    309 

Jerrard  v.  Saunders,  2  Ves.  Jr.  187       189 

v. ,  2  Ves.  Jr.  454  177 

Jervis  v.  Berridge,  L.  R.  8  Ch.  App. 

357  247 

Jesup  v.  Wabash,  St.  L.  &  P.  Ry.  Co., 

U.  S.  C.  C,  N.  D.  111.,  1889  464 

Jesus  College  v.  Gibbs,  1  Y.  &  C.  145    211 
Jewell  v.  Knisjht,  123  U.  S.  426  597 

John  E'.  Mulford,  The,  18  Fed.  R. 

455  490 

John  Griffin,  The,  15  Wall.  29  406 

Johnasson  v.  Bonhote,  L.  R.  2  Ch.  D. 

298  186 

Johns  v.  Johns,  23  Ga.  31  ^  378 

Johnson  v.  Accident  Ins.  Co.  of  N.  A., 

35  Fed.  R.  374  590 

v.  Christian,  125  U.  S  642  28 

v.  Compton,  4  Sim.  47  89 

v.  Harmon,  94  U.  S.  371       447,  451, 

452 

v.  Johnson,  13  Fed.  R.  193  14 

v.  Monell,  Woohv.  390  579 

r.  P.  W.  &  B.  R.  R.  Co.,  1  Am. 

L.  J.  457  27 

v.  Peck,  2  Ves.  Sen.  465  258 

v.  Powers,  13  Fed.  R.  315  171 

v.  Shrewsbury  &  B.  Ry.  Co.,  3 

De  G.  M.  &  G.  914  319 

v.  The  Coriolanus,  Crabbe,  239    401 

v.  Waters,  111  U.  S.  640  14.  456 

v.  Wyatt,  2  De  G.  J.  &  S.  18         316 

Johnson    County    (Comm'rs    of)    v. 

Thayer,  94  U.  S.  631  557 

Johnston  v.  Roe,  1  Fed.  R  692  197 

v.  Todd,  5  Beav.  394  286 

Jollie  v.  Jaques,  1  Blatchf.  618  315 

Jolly  v.  Arbuthnot,  4  De  G.  &  J.  224    475 
Jones,  Matter  of,  4  Sandf.Ch.  (N.  Y.) 

615 

v.  Alephsin,  16  Ves.  470 

v.  Andrews,  10  Wall.  327 


v.  Barker,  11  Fed.  R.  597 
v.  Bolles,  9  Wall.  364 
r.  Brittan,  1  Woods,  067 


374 
394 

28,  111, 
161 

237,  275 


232 


xlviii 


TABLE   OF   CASES. 
[References  are   to  pages.] 


Jones  v.  Collier,  2  Amb.  730 

v.  Earl  of  Strafford,  3  P.  Wms. 

79 

v.  Frost,  3  Madd.  9 

v. ,  1  Jacob,  466 

v.  Garcia  del  Rio,  1  Turn.  &  R. 

297 
v.  Great  Western  Rv.  Co.,  1  Ry. 

Cas.  (Eng 

v.  Howells,  2  Hare,  342 

v.  Jones,  3  Atk.  217  269, 

v.  Lewis,  1  Cox  Eq.  199 

v.  Massey,  3  Beav.  292 

v.  Morehead,  1  Wall.  155 

v.  Neale,  1  Hughes,  268 

v.  Oregon   Cent.   R.   R.   Co.,   3 

Sawy.  523  427,  429, 

v.  Powell,  2  Mer.  141 

v.  Roberts,  12  Sim.  189 

v.  Segueira,  1  Phill.  82 

v.  Slauson.  33  Fed.  R.  632     123, 

v. ,  40  Fed.  R.  314 

v.  Smith,  14  111.  229 

v.  United   States,   1   Ct.   of  CI. 

383 

v.  Van  Zandt,  5  How.  215 

Jopp  v.  Wood,  2  De  G.  J.  &  S.  323 
Jordan,  Ex  parte,  94  U.  S.  248        88, 
291,  292,  534, 
v.  Agawam  Woollen  Co.,  3  Cliff. 

239 
Josslyn  v.  Phillips,  29  Fed.  R.  481 

Judson,  Ex  parte,  3  Blatchf .  89 

,  Ex  parte,  3  Blatchf.  148 

Juneau  Bank  v.  McSpedan,  5  Biss.  64 


440 
181 
181 

89 

339 
272 
272 
84 
257 
216 
426 

431 

66 
288 
209 
171 
559 
252 

410 

597 
516 
290, 
598 

495 

481, 
590 
413 
424 
160 


K. 

Kain  v.  Smith,  80  N.  Y.  458  375 

Kaine,  Ex  parte,  3  Blatchf.  1  545 

,  In  re,  14  How.  103  545,  546,  547 

Kaiser  v.  Kellar,  21  Iowa,  95  374 

Kaitel  v.  Wylie,  38  Fed.  R.  865  577 

Kanawha  Coal  Co.  v.  Kanawha  &  O. 

Coal  Co.,  7  Blatchf.  391  84 

Kanouse  v.  Martin,  15  How.  198    587,  614 
Kansas  v.  Bradley,  26  Fed.  R.  289  25 

Kansas  City  &  T.  Ry.  Co.  v.  Interstate 

Lumber  Co.,  36  Fed.  R.  9  584 

». ,  37  Fed.  R.  3  570 

Karr  v.  Jackson,  28  Mo.  316  405 

Kauffnian  v.  Kennedy,  25  Fed.  R.  785 

160,  586 

17.  Walker,  9  Md.  229  463 

Kay  17.  Marshall,  1  Keen,  190         188,  189 
Kearney  v.  Case,  12  Wall.  275  555 

Rebel  v.  Philpot,  9  Sim.  614  451 

Keenan  v.  Shannon,  9  N.  B.  R.  441      343 
Keene  v.  Clarke,  5  Rob.  (N.  Y.)  38       314 

0.  Meade,  3  Pet.  1  430,  431 

».  Wheatley,  9  Am.  L.  Reg.  33    241 

Keep  v.  Indianapolis  &  St.  L.  R.  R. 

Co.,  10  Fed.  R.  454  551 


Keiley  v.  Dusenbury,  10  J.  &  S.  (N.  Y.) 

238  369 

v. ,  77  N.  Y.  597  369 

Keller  v.  Stolzenhach,  20  Fed.  R.  47  199 
Keiley,  In  re,  25  Fed.  R.  268  544 
p.  Miss.  Cent.  R.  R.  Co.,  1  Fed. 

R.  564  ;  2  Flipp.  581  192 

Kelly,  In  re,  5  Fed.  R.  846  350,  353 

v.  Hutton,  17  W.  R.  425  356 

».  Receiver  of  Green  Bay  &  M. 

R.  R.  Co.,  5  Fed.  R.  846  350,  353 
17.  Virginia  Protection  Ins.  Co., 

3  Hughes,  449  586 

Kelsey  v.  Hobby,  16  Pet.  269  228,  250 
Kemp  i'.  Mackrell,  3  Atk.  812  258 

Kempe's  Lessee  v.  Kennedy,  5  Cranch, 

173  543 

Kendall  v.  Beckett,  1  Russ.  152    151,  241 

».  Stokes,  3  How.  87  73 

v.  United  States,  12  Pet.  524         537 

Kendig  v.  Dean,  97  U.  S.  423        101,  438, 

446 
Kennedy   v.  Baylor,  1   Wash.  (Va.) 

162  396 

v.  Creswell,  101  U.  S.  641      209,  210 

v.  Georgia  State  Bank,  8  How. 

586  245,  520 

17.  Green,  3  M.  &  K.  699  247 

v.  Indianapolis,  C.  &  L.  R.  Co., 

3  Fed.  R.  97  375 
v.  St.  Paul  &  P.  R.  R.  Co.,  2  Dill. 

448  2,  363,  365,  366,  367 

Kennington  v.  Houghton,  2  Y.  &  C. 

N.  R.  630  248 

Kensett  v.  Stivers,  10  Fed.  R.  517  322 
Kent  v.  Burgess,  11  Sim.  361  449 

Kentucky  v.  Donnison,  24  How.  266  20 
Kentucky  S.  M.  Co.  r.  Day,  2  Sawy. 

468  113,  162 

Kenworthy  v.  Accunor,  3  Madd.  550  157 
Keppell  v.  Bailey,  2  M.  &  K.  517  107 

Kern  v.  Huidekoper,  103  U.  S.  485  11,  574 
Kerosene  L.  H.  Co.  v.  Fisher,  1  Fed. 

R.  91  455,  456,  458 
Kerr  v.  Moon,  9  Wheat.  565  68 
17.  South  Park  Comm'rs,  117  U.  S. 

379  450, 451 

Kerrison  v.  Stewart,  93  U.  S.  155  87 

Kershaw  v.  Mathews,  1  Russ.  361  377,  378 
Ketch  urn,  In  re,  1  Fed.  R.  840  356 

17.  Driggs,  6  McL.  13  184,  327 

v.  Farmers'    L.   &    T.   Co.,   4 

McL.  1  519 

Ketland  v.  Bissett,  1  Wash.  144  430 

Kettle  t7.  Crary,  1  Paige  (N.  Y.),  417,  n.  90 
Kidd  v.  Horry,  28  Fed   R.  773  324 

Kidwell  v.  Masterson,  3  Cranch  C.  C 

52  336 

Kiffin  v.  Kiffin,  1  P.  Wms.  705  344 

Kilbourn  v.  Sunderland,  130  U.  S.  505 

178,  191 
Kilbourne  v.  State  Sav.  Inst.,  22  How. 

503  624 

Kilgour  v.  New  Orleans  G.  L.  Co.,  2 
Woods,  144     13,  118,  119,  137,  158,  177 


TABLE   OF   CASES. 
[References  are  to  pages.] 


xlix 


Killian  v.  Ebbinghaus,  110  U.  S.  568      7, 

16,  143 

v. ,  111  U.  S.  798  622,  623 

Kimberly  v.  Arms,  129  U.  S.  512  463 

King  v.  Bryant,  3  M.  &  C.  191  457 

v.  Dale,  2  111.  513  405 

v.  Dundee  M.  &  T.  I.  Co.,  28  Fed. 

R.  33  519,  523 

v.  King,  6  Ves.  172  342 

v.  Ohio  &  M.  Ry.  Co.,  7  Biss.  529   371 

King  Bridge  Co.  v.  Otoe  County,  120 

U.  S.  225  481,  590 

King  of  Spain   v.  Machado,  4  Russ. 

225  106 

King   of   Two  Sicilies  v.  Willeox,  1 

Sim.  n.  s.  301  178 

Kirby  v.  Lake  Shore  &  M.  S.  R.  R. 

Co ,  120  U.  S.  130  10 

Kirby  Bung  Manuf.  Co.  v.  White,  1 

Fed.  R.  604  312,  333,  339 
Kirk  v.  Clark,  Prec.  in  Ch.  275  102 
v.  Milwaukee  D.  C.  M.  Co.,  26 

Fed.  R.  501  589 

Kirkley  v.  Burton,  5  Madd.  378  141 

Kirkpatrick  v.  Baltimore  &  O.  R.  R. 

Co.,  24  Pittsb.  L.  J.  51  425 

v.  White,  4  Wash.  595  208 

Kissinger  v.  Bean,  7  Biss.  60  322 

Kitchen  v.  Randolph,  93  U.  S.  86  606 

Kittle  v.  De  Graaf,  30  Fed.  R.  689  15 
Kittredge  v.  Claremont  Bank,  3  Story, 

590;  1  Woodb.  &  M.  244    190,  192,  215, 

219,  220,  225,  237 

Knapp  v.  Banks,  2  How.  73  595 

v.  Williams,  4  Ves.  430,  n.  356 

Knickerbacker  v.  De  Freest,  2  Paige 

(N.  Y.),  304  78 
Knight  v.  Knight,  3  P.  Wms.  331  81,  82 
v.  Lord  1'limouth,  3  Atk.  480; 

1  Dick.  120  372,  374 

v.  Matthews,  1  Madd.  566      220,  241 

v.   Watts,  Coop.  t.  Cottenham, 

257  392 

Knode  v.  Williamson,  17  Wall.  586      425, 

429 
Knott  v.  Burleson,  2  G.  Gr.  (la.)  GOO  171 
Knox  v.  Smith,  4  How.  298  16 

Koehler,  Ex  parte,  23  Fed.  R.  529  368 
Kohl  v.  United  States,  91  U.  S.  367  565 
Koontz  v.  Northern  Bank,  16  Wall. 

196  359,  360,  374 

Korn  o.  Wiebusch,  33  Fed.  R.  50  189 

Koshkonong  v.  Burton,  104  U.  S.  668  443 
Kreager  v.  Judd,  5  Fed.  R.  27  479 

Krippendorf  v.  Hyde,  110  U.  S.  276       28, 

110,  111 
Kurtz  v.  Moffitt,  115  U.  S.  487     544,  570, 

614 


L. 


Labette  County  Comm'rs   v.  United 
States,  112  U.  S.  217  539 

Lacey,  Ex  parte,  6  Ves.  625  3 


Lacroix  v.  Lyons,  27  Fed.  R.  403  585,  590 
La  Crosse  R.  R.  Bridge,  2  Dill.  465  360 
Lady  Arundell  v.  Phipps,  10  Ves.  139  306 
Lady  Carrington  v.  Cantillon,  Bunb. 

107  155 

Lafayette   Co.  v.  Neely,  21  Fed.  R. 

738  114,  117,  128,  383 

Lafayette  Ins.  Co.  v.  French,  18  How. 

404  113 

Laimbeer  v.  Allen,  2  Sandf.  (N.  Y.) 

648  408 

Laird  r.  Mayor  of  De  Soto,  25  Fed. 

R.  76  538 

Lake  v.  Austwick,  4  Jur.  314  268 

v.  Philips,  1  Rep.  in  Ch.  110         397 

Lamaster  v.  Keeler,  123  U.  S.  376       500, 

562 
Lamb  v.  Briard,  Abb.  Adm.  367  401 

v.  Starr,  Deady,  350       170,  202,  208 

La  Mote  Manuf.  Co.  v.  National  T. 

W.  Co.,  15  Blatchf.  432  585 

Lancashire  v.  Lancashire,  9  Beav.  259  449 
Lancaster  v.  Lancaster,  6  Sim.  439  415 
Land  Co.  of  N.  M.  v.  Elkins,  20  Fed. 

R.  545  84,  97,  238,  332 

Lane,  Ex  parte,  6  Fed.  R.  34  544 

v.  Hardwicke,  9  Beav.  148  223 

v.  Morse,  6  How.  Pr.  (N.  Y. )  394    407 

v.  Newdigate,  10  Ves.  192  324 

Lanesborough  (Lord)  v.  Jones,  1  P. 

Wms.  325  4 

Langdale  v.  Briggs,  4  W.  R.  703  475 

Langdon  v.  Branch,  37  Fed.  R.  449       121 

v.  Goddard,  3  Story,  13     116,  216,  217 

Lange,  Ex  parte,  18  Wall.  163  542,  544 
Langley  v.  Hawk,  5  Madd.  46  343 

v.  Overton,  10  Sim.  345  26-5 

Langston  v.  Boylston,  2  Ves.  Jr.  101  143, 
'  145 

407 
306 
438 
175 


v.  Wetherell,  14  M.  &.  W.  104 

Lanier  v.  Alison,  31  Fed.  R.  100 

v.  Nash,  121  U.  S.  404 

Lansdale  v.  Smith,  106  U.  S.  391 
Lansing  v.  County  Treasurer,  1  Dill. 

522  538 

Lanz  v.  Randall,  4  Dill.  425  27 

Earned  v.  Griffin,  12  Fed.  R.  590     160, 191 
Latham  v.  Chafee,  7  Fed.  R.  520  194 

r. ,  7  Fed.  R.  526  377 

La  Touche  v.  Lord  Dunsany,  1  Sch. 

6  Lef.  137  248,  254 
Laurens,  The,  1  Abb.  Adm.  508  502,  504 
Lautz  v.  Gordon,  28  Fed.  R.  264  _'".l 
La  Vega  v.  Lapsley,  1  Woods,  428       227, 

438 
Lavender  v.  Lavender,  9  Ir.  Eq.  R. 

593  387 

Lawrence  »\  Bowman,  1  McAll.  419     326 

v.  Dana,  4  Cliff.  1  314,  315 

v.  Gaultney,  Cheves'  Law  (S.  C), 

7  405 
v.  Greenwich  F.  I.  Co.,  1  Paige 

(X.  Y.).  587  345 

u.  Morgan's  R.  R.  &  S.  S.  Co., 

121  U.  S.  634  304 


TABLE   OF   CASES. 
[References  are  to  pages.] 


Lawrence  ?>.  Smith,  Jacob,  471      314,  316 

v.  United  States,  2  McL.  581         400 

v,  Wirtz,  1  Wash.  417  99 

Lavrton  v.  Blitch,  30  Fed.  R  641  589 

Layer  v.  Nelson,  1  Veru.  456  4 

Lazensky   v.   Knights   of   Honor,    32 

Fed.  R.  417  589,  590 

Lea  v.  Deakin,  13  Fed.  R.  514  339 

Leach  v.  Kay,  2  Flipp.  590  488 

Leary,  Matter  of,  10  Ben.  197  546 

Leatherberry  v.  Radcliffe,  5  Cranch 

C.  C.  550  426 

Leather  Cloth  Co.  v.  American  L.  C. 

Co.,  10  Jur.  n.  s.  81  317,318 

v. ,  ii  H.  L.  C.  523  318 

Leather  Manufacturers'  Bank  v.  Coop- 
er, 120  U.  S.  778  25,  102,  571 
Leavenworth  v.  Pepper,  32  Fed.  R. 

718  112 

Leavenworth  County   v.  Barnes,  94 

U.  S.  70  558 

Leddel's  Ex'r  v.  Starr,  19  N.  J.  Eq. 

159  379 

Lee,  Ex  parte,  4  Cranch  C.  C.  197         486 

v.  Brown,  4  Ves.  362  478 

v.  Lee,  1  Hare,  617  257,  258,  338 

r. ,  8  Pet.  44  595 

v.  Milner,  2  Y.  &  C.  611  300 

v.  Watson.  1  Wall.  337  23 

Leech  v.  Bailey,  6  Price,  504  211 

v.  Kay,  4  Fed.  R.  72  488 

Leeds  v.  Jersey  City  &  B.  P.  P.  R. 

Co.,  16  N.  J.  Eq.  13  323 
v.  Marine   Ins.   Co.,   2   Wheat. 

380  396 

Legard  v.  Daly,  1  Ves.  Sen.  192  448 

v.  Sheffield,  2  Atk.  377  78 

Leerand  v.  Whitehead,  1  Russ.  309  446 
Lehigh  Coal  &  Nav.  Co.  v.  Central  R. 

R.  ofN.  J.,  35  N.  J.  Eq.  426  363 

Lehman  v.  McQuown,  31  Fed.  R.  138    376, 

388 
Leicester  v.  Leicester,  10  Sim.  87  439 

Leicester  (Earl  of)  v.  Perry,  1  Bro.  C. 

C.  305  189,  211 

Leigh  v.  Leigh,  Daniell's  Ch.  Pr.  369      114 

v.  Thomas,  2  Ves.  Sen.  312     88,  290 

v.  Ward,  2  Vent.  72  396 

Leiper  v.  Bickley,  1  Cranch  C.  C.  29  425 
Leitch  v.  Cumpston,  4  Paige  (N.  Y.), 

476  514 

Leo  ?>.  Union  Pacific  Ry.  Co.,  17  Fed. 

R.  273  128,  332 

v. ,  19  Fed.  R.  283  116 

Le  Texier  v.  Margravine  of  Anspach, 

15  Ves.  159  137 

Letters  Rogatory,  In  re,  36  Fed.  R. 

306  433 

Levi  v.  Columbia  Ins.  Co.,  1  Fed.  R. 

206  11 

Levine  v.  Taylor,  12  Mass.  8  64 

Leving  v.  Caverly,  Prec.  in  Ch.  229  79 
Levy  v.  Burley,  2  Sumn.  355  401 

Lewarne  v.  Mexican  Int.  Imp.  Co  ,  38 

Fed.  R.  629  122, 124 


Lewis  v.  Baird,  3  McL.  56  203,  207 

v.  Bridgman,  2  Sim.  465        264,  265 

v.  Cocks,  23  Wall.  466  7,  16,  191 

v.  Darling,  16  How.  1  101,104 

v.  Fullarton,  2  Beav.  6  315 

v.  Shainwald,  7  Sawy.  403      57,  389, 

391,  392 
Lichfield  (Earl  of)  v.  Bond,  5  Beav. 

513  226 

Life  Insurance  Co.  v.  Bangs,  103  U. 

S.  780  18,  199 

Life  &  Fire  Ins.  Co.  v.  Adams,  9  Pet. 

571 


v.  Wilson,  8  Pet.  291 


534 
534,  535 


Lilienthal  v.  Washburn,  8  Fed.  R.  707  209 
Lillia  v.  Airey,  1  Ves.  Jr.  277  479 

Lincoln  v.  Battelle,  6  Wend.  (N.  Y.) 

475  433 

v.  Claflin,  7  Wall.  132  560 

Linder  r.  Lewis,  1  Fed.  R.  378  169 

Lindsay  v.  Lynch,  2  Sch.  &  Lef.  1  239 
Lingan  v.  Henderson,  1  Bland  (Md.), 

236  476 

Linn  v.  Green,  17  Fed.  R.  407  133 

Linton  v.  Mosgrove,  14  Fed.  R.  513  304 
Lippincott  v.  Shaw  Carriage  Co.,  34 

Fed.  R.  570  478 

Litchfield  v.  Ballou,  114  U.  S.  190  17 

Little  v.  Giles,  118  U.  S.  596  438,  571 

v.  Gould,  2  Blatchf.  165  315,  316 

v.  Merrill,  62  Me.  328  247 

Littlefield  v.  Perry,  21  Wall.  205  14 

Liverpool  Ins.  Co.  v.  Massachusetts, 

10  Wall.  556  27,  88 

Liverpool,   N.  Y.  &  P.  S.    S.   Co.  v. 

Comm'rs  of  Emigration,  113  U.  S. 

33  198 

Livingston  v.  Dorgenois,   7   Cranch, 

577  534 
v.  Gibbons,  4  Johns.  Ch.  (N.  Y.) 

94  101 
v.  Kane,  3  Johns.  Ch.  (N.  Y.) 

224  439,  440 
i\  Pettigrew,   7  Lans.    (N.   Y.) 

405  374 

v.  Story,  9  Pet.  632  418 

v. ,11  Pet.  351  190 

v.  Wood  worth,  15  How.  546  107 

Lloyd,  In  re,  10  Beav.  451  505 

r. ,  2  Dick.  400  79 

Brewster,  4  Paige  (N.  Y.), 


537 


Gurdon,  2  Swanst.  180 
v.   Heath,  Busb.  Eq.  (N. 

v.  Johnes,  9  Ves.  37         8 

v.  Loaring,  6  Ves.  773 

v.  London,  C.  &  D.  Ry. 

De  G.  J.  &  S.  568;    11  Jur. 

380 

v.  Smith,  13  Sim.  457 

v.  Spillat,  3  P.  Wins.  344 

Locke  v.   Covert,  42  Hun  (N 

484 


118 
305 
C.)  39 

309 

\  270,  272, 

276,  278 

89 

Co.,  2 

N.  8. 

300,  301 
85 
496,  497 
Y-), 

869 


TABLE    OF   CASES. 
[References  are  to  pages.] 


Locke  v.  United  States,  7  Cranch,  339 
Lockhart  v.  Horn,  3  Woods,  542 
Lockwood  v.  Cleaveland,  6  Fed.  R. 

721  248, 

Locomotive  E.  S.  T.  Co.  v.  Erie  Ry. 

Co.,  10  Blatchf.  292 
Lodge  v.  Stoddart,  9  Reporter,  137 
Loewenstein  v.  Biernbaum,  8  W.  N. 

C.  (Pa.)  163 
Logan  v.  Patrick,  5  Cranch,  288    111, 
Loker  v.  Rolle,  3  Ves.  4 
London  v.  Bolt,  5  Ves.  129  288, 
v.  Corporation  of  Liverpool,   3 

Anst.  738 

v.  Levy,  8  Ves.  398  186, 

v.  Perkins,  3  Bro.  P.  C.  602      92, 

Long  Island,  N.  S.,  P.  &  F.  T.  Co.,  In  re, 

5  Fed.  R.  599 
Longworth  v.  Taylor,  1  McL.  514 

Lonsdale  v.  Brown,  3  Wash.  404 
Lonsdale  (Earl  of)   v.  Church,  3  Bro. 

C.  C  41 
Lonsdale  Co.  v.  Moies,  2  Cliff.  538 
Lookout  Mountain  R.  R.  Co.,  v.  Hous- 
ton, 32  Fed.  R.  711 
Loom  Co.  v.  Higgins,  105  U.  S.  580 
Loomis  v.  Carrington,  18  Fed.  R.  97 

v.  New  York  &  C.  G.  C.  Co.,  33 

Fed. R.  353 
Lord  v.  Veazie,  8  How.  251 

v.  Whitehead  &  A.  Machine  Co., 

21  Fed.  R.  801 
Lord  Brook  v.   Lord  Hertford,  2  P. 

Wins.  518 
Lord  Byron  v.  Johnston,  2  Meriv.  29 

Lord  Chedworth  v.  Edwards,  8  Ves. 

46 
Lord  Digby  v.  Meech,  Bunb.  195 
Lord  Dillon  v.  Alvares,  4  Ves   357 
Lord  Dursley  v.  Berkeley,  6  Ves.  251 

Lord  Fingal  v.  Blake,  1  Moll.  113 
Lord    Lanesborougli   v.   Jones,    1    P. 

Wms.  325 
Lord  Manners  v.  Johnson,  L.  R.  1  Ch. 

I).  673 
Lord   Montague  v.  Dudman,  2  Ves. 

Sen.  396 
Lord  Montford  v.  Lord  Cadogan,  17 

Ves.  485 
Lord  Pelham   v.   Duchess   of   New- 
castle, 3  Swanst.  289,  n. 

v. ,  3  Swanst.  293,  n. 

v.  Lord  Harley,  3  Swanst.  291,  n. 

Lord    Shipbrooke   v.    Lord   Hinchin- 

brook,  13  Ves.  387 
Lord  Uxbridge  v.  Staveland,  1    Ves. 

Sen.  56  114,  140,  178, 

Lorillard  v.  Standard  Oil  Co.,  2  Fed. 

R.  902  65,  80, 

Loring,  Ex  parte,  94  U.  S.  418 

r.  Marsh,  2  Cliff.  311  194, 

-,  2  Cliff.  469 


406 
169 

250 

468 
316 

389 
156 
417 
327 

188 
417 
124 

304 
151, 
241 
429 

373 
454 

580 
214 

587 

30 
504 

14 

471 

331, 
332 

305 
131 
194 
4, 
414 
448 

4 

300 

304 

343 

510 
510 
510 

287 

219 

255 
535 

209 
6 


ll 


9,557 


Lorman  v.  Clarke,  2  McL.  568 
Lorton  !;.  Seaman,  9  Paige  (N.  Y.), 

609  293 

Louisiana  v.  Jumel,  107  U.  S.  711     75, 

323,  536 

v.  Pilsbury,  105  U.  S.  278  558 

Louisiana  Bank  v.  Whitney,  121  U.  S. 

284  467 

Louisiana  S.  L.  Co.  v.  Clark,  16  Fed. 

R.  20 ;  4  Woods,  169  301 

v.  Fitzpatrick,  3  Woods,  222         210 

Louisville,  C.  &  C.  R.  R.  Co.  v.  Let- 
son,  2  How.  497  26 
Louisville  &  N.  R.  R.  Co.  v.  Ide,  114 

U.  S.  52  571 

v.  Palmes,  109  U.  S.  244  172 

Lousada  v.  Templer,  2  Russ.  565  238 

Love  v.  Baker,  1  Ch.  Cas.  67  304 

Lovejoy  t>.  United  States,  128  U.  S. 

171  556 

Loveridge  v.  Larned,  7  Fed.  R.  294  478 
Loving  v.  Fairchild,  1  McL.  333  208 

Low  v.  Durfee,  5  Fed.  R.  256  550 

v.  Hauel,  1  Wall.  Jr.  345  335 

Lowe  v.  Farlie,  2  Madd.  101  186 

v.  Lowe,  1  Tenn.  Ch.  515  383 

v.  Richardson,  3  Madd.  277  143 

Lowell  v.  Lewis,  1  Mason,  182  214 

Lowenstein  v.  Glide  well,  5  Dill.  325    252, 

253,  254 
Lowndes  v.  Bettle,  33  L.  J.  Ch.  461  309 
Lowther  v.  Andover,  1  Bro.  C.  C.  396  470 
Loyd  v.  Cardy,  Prec.  in  Ch.  171  391 

Lubiere  v.  Genou,  2  Ves.  Sen.  579  253 
Lucas  v.  Brooks,  18  Wall.  436  410 

v.  Lucas,  13  Ves.  274  219,  225 

Lull  v.  Clark,  20  Fed.  R.  454  458,  461 
Lumbrozo  v.  White,  1  Dick.  150  407 

Luminary,  The,  8  Wheat.  407  406 

Lumley  v.  Wagner,  1  De  G.  M.  &  G. 

604  319 

Lunt  v.  Davison,  104  Mass.  498  538 

Lupton  v.  Stephenson,  1 1  Ir.  Eq.  484     379, 

380 
Luther  v.  The  Merritt  Hunt,  Newb. 

4  426,  427 

Lutterel's  Case,  Prec.  in  Ch.  50  66,  307 
Luxton  v.  Stephens,  3  P.  Wms.  373  480 
Lyell  v.  Goodwin,  4  MeL.  29  160 

Lyman  v.  Brown,  2  Curt.  559  199 

Lyman  V.  &  R.  Co.  v.  Southard,  12 

Blatchf.  405  498 

Lyster  v.  Stickney,  12  Fed.  R.  609    239, 

240,  435 
Lytle,  In  re,  3  Paige  (N.  Y.),  251  386 

M. 

Macaulay  v.  White  S.  M.  Co.,  9  Fed. 

R.  698  313 

Macgregor  v.  Macgregor,  9  Iowa,  65  468 
Mack  v.  Jones,  31  Fed.  R.  189  387,  589 
Macker  v.  Thomas,  7  Wheat.  530       554, 

599 


lii 


TABLE   OF   CASES. 
[References  are  to   pages.] 


Mackett  v.  Commissioners  of  Heme 

Bay,  24  W.  R.  845  ^    328 

Mackin  v.   United   States,  117  U.  S. 

348  543 

Mackreth  v.  Fox,  4  Bro.  P.  C.  258  3 

v.  Nicholson,  19  Ves.  367  152 

Mahoney    Min.   Co.    v.    Bennett,    4 

Sawy.  289  387,  584 

Maine  v.  Oilman,  11  Fed.  R.  214  587 

Mair  v.   Himalaya  Tea  Co.,    L.   R. 

1  Eq.  411  318 

Malcolm  v.  Montgomery,  2  Moll.  500  377 
Mallack  v.  Gallon,  3  P.  Wms.  352  471 
Mallory  Manuf.  Co.  v.  Fox,  20  Fed. 

R.  409  462,  502 

Mallow  v.  Hinde,  12  Wheat.  193    96,  98, 

99,  106 
Malone  v.  Richmond  &  D.  R.  R.  Co  , 

35  Fed.  R.  625  577,  578,  579 

Maloy  v.  Duden,  25  Fed.  R.  673  27,  580 
Maltby  v.  Bobo,  14  Blatchf.  53  327 

Maltz  v.  American  Exp.  Co.,  3  Cent. 

L.  J.  784  27 

Manaton  v.  Molesworth,  1  Eden,  18    137, 

521 
Manby  v.  Robinson,  L.  R.  4  Ch.  347     144, 

145 
Mandeville  v.  Riggs,  2  Pet.  482  90 

Manhattan  Co.  v.  Evertson,  4  Paige 

(N.  Y.),  276  456 

Manhattan  I.  W.  Co.  v.  French,  12 

Abb.  N.  C.  (N.  Y.)  446  310 

Mann  v.  King,  18  Ves.  297  284 

Manners  v.  Rowley,  10  Sim.  470  122 

Manners   (Lord)   v.   Johnson,   L.  R. 

1  Ch.  D.  673  300 

Mansfield,   C.   &  L.  M.   Ry.   Co.   *. 

Swan,    111    U.   S.  379    437,  480,  589, 

590 
Manufacturing  Co.  v.  Bradley,    105 

U.  S.  175  8,  13,  98,  124 
Many,  Ex  parte,  14  How.  24  534 
v.  Beekman  Iron  Co.,  9  Paige, 

189  82 

v.  Sizer,  1  Fisher  Pat.  Cas.  31       312 

Marbury  v.  Madison,  1  Cranch,  137        5, 

73,  534 
Mare  v.  Malachy,  1  M.  &  C.  559  83 

Margrave  v.  Le  Hooke,  2  Vern.  207  175 
Marin  v.  Lalley,  17  Wall.  14  467 

Market  Co.  v.  Hoffman,  101  U.  S.  112    24, 

596 
Markey  v.  Mutual  Benefit  L.  I.  Co., 

6  Ins.  L.  J.  537  8,  125,  175,  418 

Markle    v.    Markle,   4    Johns.     Ch. 

(X.  Y.)  168  79 

Marks  v.  Fox,  18  Fed.  R.  713  462 

Marquis  Cholmondeley  v.  Lord  Clin- 
ton, 2  Jac.  &  W.  1  83,  84 

v. ,  2  Meriv.  71  239,  418 

Marriott  v.  Tarpley,  9  Sim.  297  271 

Marrow,  In  re,  Cr.  &  Ph.  142  294 

Marsh,  Matter  of,  MacA.  &  M.  (D.  C.) 

32  506 
v.  Sibbald,  2  Ves.  &  B.  375  450 


Marsh  v.  Whitmore,  21  Wall.  185  175 
Marshall  v.  Baltimore  &  U.  R.  R.  Co., 

16  How.  314  26 

v.  Mellersh,  5  Beav.  496  280 

v.  Turnbull,  34  Fed.  R.  827  131 

Martin,  In  re,  5  Blatchf.  303  540,  544,  545 
o.  Hazard  Powder  Co.,  93  U.  S. 

302  606 

v.  Hunter,  1  Wheat.  304    604,  613, 

623 

v.  Nicolls,  3  Sim.  458  199 

Martinetti  v.  Maguire,  Deady,  216  317 
Martinius  v.  Ilelmuth,  G.  Cooper,  248, 

2  Ves.  &  B.  412,  n.  145,  156,  480 

Marve  v.  Parsons,  114  U.  S.  325  16,  322 
Maryland  v.  Baldwin,  112  U.  S.  490  26 
Mason  v.  Bogg,  2  My  I.  &  C.  443  89 

v.  Codwise,  6  Johns.  Ch.  (N.  Y.) 


183 


v.  Crosby,  3  Woodb.  &  M.  258 
v.  Gardiner,  4  Bro.  C.  C.  436 


497 
463 
138, 
252 
145 


v.  Hamilton,  5  Sim.  19 

v.  Hartford,  P.  &  F.  R.  R.  Co., 

10  Fed.  R.  334      204,  230,  231,  239,  240 

v. ,  19  Fed.  R  53       68,  264,  265 

v.  Lake,  2  Bro.  P.  C.  495  178 

v.  Northwestern    Ins.    Co.,    106 

U.  S.  163  473 

v.  Rollins,  2  Biss.  99  321 

Massa  v.  Cutting,  30  Fed.  R.  1  24 

Massachusetts  Mut.  L.  I.  Co.  v.  Chi- 
cago &  A.  R.  Co.,  13  Fed.  R.  857     194, 

195 

Massie  v.  Graham,  3  McL.  41     514,  519, 

520,  521,  622 

v.  Watts,  6  Cranch,  148     2,  305,  468 

598, 
599 
169 
84 
469 
468 
14 


Masterson  v.  Herndon,  10  Wall.  416 


v.  Howard,  18  Wall.  99 

Matcalm  v.  Smith,  6  McLean,  416 
Matteson  v.  Scofield,  27  Wis.  671 
Matthaei  v.  Galitzin  L.  R.,  18  Eq.  340 
Matthews  v.  Green,  19  Fed.  R.  649 
v.  Ironclad  Manuf.  Co.,  19  Fed. 

R.  321  333 
v.  Lalance  &   G.  Manuf.  Co.,  2 

Fed.  R.  232  193,  210,  231 

v.  Ofliey,  3  Sumner,  115  401 

v.  Pufier,  10  Fed.  R.  606  160 

v.  Tufts,  87  N.  Y.  568  160,  412 

v.  Warner,  6  Fed.  R.  461  9,  138 

c. ,  112  U.  S.  600  9,  138 

Matthewson  v.  Stockdale,  12  Ves.  270    316 
Mattocks  v.    Freeman,  3  Johns.  Ch. 

(N.Y.J75  391,392 
Maury  v.  Mason,  8  Port.  (Ala.)  213  212 
v.  Van  Arnum,  1  Hill  (N.  Y.), 

370  407 

Maxwell  v.  Atchison,  T.  &  S.  F.  R. 

Co.,  34  Fed.  R.  286  154,155 

v.  Kennedy,  8  How.  210       175 

May,  In  re,  1  Fed.  R.  737  504 
v.  County  of  Fond  du  Lac,  27 

Fed.  R.  691  11 


TABLE    OF    CASES. 
[References  are  to   pages.] 


May  v.  County  of  Logan,  30  Fed.  P.. 

250  11,  554 

Mayer,  In  re,  L.  K.  3  P.  &  M.  39  356 

v.  Foulkrod,  4  Wash.  349  12 

Mayhew  v.  West  Virginia  O.  &  O.  L. 

Co.,  24  Fed.  R.  205  464 

Maynard  v.  Green,  30  Fed.  R.  643        271 

v.  Pomfret,  3  Atk.  468  165 

Mayor,  The,  v.  Lord,  9  Wall.  409  538 
Mayor  of  London  v.  Bolt,  5  Ves.  129  288, 

327 

v.  Levy,  8  Ves.  398  186,417 

Mayor  of  New  York  v.  Miln,  9  Pet. 

85  620 

Mayor  of  York  v.  Pilkington,  1  Atk. 

282  .  92,  124 

v. ,  2  Atk.  302  304 

Mays  v.  Rose,  Freem.  Ch.  (Miss.)  703  346 
Mazarredo  v.  Maitland,  3  Madd.  66  218 
McArthur  v.  Kelly,  5  Ohio,  139  322 

v.  Scott,  113  U.  S.  340         90,  91,  92 

McBratney  v.  Usher,  1  Dill.  307  585 

McCabe  v.  Bellows,  1  Allen  (Mass.), 

269  126 

McCall  v.  Towers,  1  Cranch  C.  C.  41  429 
McCarty  &  H.  Trading  Co.  v.  Glaen- 

zer,  30  Fed.  R.  387  25 

McCauley  v.  Kellogg,  2  Woods,  13  235 
McCaull  v.  Braham,  16  Fed.  R.  37  319 
McCloskey  v.  Barr,  38  Fed.  R.  165 

188,  189,  190,  192,  198 
McClung  v.  Silliman,  6  Wheat.  598    536, 

537 
McCluny  v.  Silliman,  3  Pet.  270  10 

McCollum  v.  Eager,  2  How.  61  467 

McComb  v.  Chicago,  St.  L.  &  N.  O. 

R.  R.  Co.,  7  Fed.  R.  426  82 

— —  v.  Commissioners  of  Knox  Co., 

91  U.  S.  1  614 

McConihay  v.  Wright,  121  U.  S.  201  8 
McConville  v.  Gilmour,36  Fed.  R.  277  21, 

22,25 
McCormick  v.  Chamberlin,  11  Paige 

(N.  Y.),  543  225 

v.  Gray,  13  How.  26  24 

v.  Jerome,  3  Blatchf.  486  334 

v.  Knox,  105  U.  S.  122  470 

v.  Sullivant,  10  Wheat.  192  543 

McCosker    v.    Bradv,    1   Barb.   Ch. 

(N.Y.)329  343 

McCoy  v.  Cincinnati,  I.,  St.  L.  &  C. 

R.  R.  Co.,  13  Fed.  R  3  298,  325 

v.  Nelson,  121  U.  S.  484         129,  130 

v.  Rhodes,  11  How.  131  97 

McCrary  v.  Pennsylvania  Canal  Co., 

5  Fed.  It.  367    "  339,  341 

McDermott  v.  Chicago  &  N.  W.  Ry. 

Co.,  38  Fed.  R.  529  579 

McDonald  v.  Salem  C.  F.  M.  Co.,  31 

Fed.  R.  577  27,  190,  590 

McDonnell  v.  Eaton,  18  Fed.  R.  710    100, 

125 

v.  White,  11  H.  L.  C.  570  359 

McElrath  v.  Mcintosh,  1  Law  Rep. 

x.  8.  399  322 


liii 

McElrath  v.  Pittsburg  &  S.  R.  R.  Co., 

5  Pa.  St.  189  468 

McElroy  v.  Kansas  City,  21  Fed.  R. 

257  309 

McElwain  v.  Willis,  3  Paige  (N.  Y.), 

505  187 

McEvers  v.  Lawrence,  Hoffm.  (N.  Y.) 

172  369 

McFerran  v.  Taylor,  3  Cranch,  281  3 

McGehee  v.  Polk,  24  Ga.  406  392 

McGoon  v.  Scales,  9  Wall.  23  443 

McGowin  v.  Remington,  12  Pa.  St.  56 

319,  :!25 
McGregor  v.  McGillis,  30  Fed.  R.  388  584 
McGuire  v.  Commonwealth,  3  Wall. 

382  614 

v.  Eames,  15  Blatchf.  312  312 

McHenry  v.  New  York,  P.  &  O.  R.  R. 

Co.,  25  Fed.  R.  65  580 

Mclntire  v.  Wood,  7  Cranch,  504  536 

McKay  v.  Dibert,  5  Fed.  R.  587     312,  333 
McKeen  v.  Ives,  35  Fed.  R.  801  575 

McKewan  v.  Sanderson,  L.  R.  16  Eq. 

316  205,  208 

McKim  v.  Voorhies,  7  Cranch,  279      303 
McLaughlin  v.  Swann,  18  How.  217     301 

v.  United  States,  107  U.  S.  526      12 

McLean  v.  Clark,  23  Fed.  R.  861  481 

v.  Lafayette  Bank,  3  McL.  185     303 

y. ;  3  McL.  415  123 

„. 1  3  McL.  503  280,  282 

McMicken  v.  Perrin,  18  How.  507         514 
McMillin  v.  St.  Louis  &  M.  V.  T.  Co., 

18  Fed.  R.  260  129,  130 

McNamara  v.  Dwyer,  7  Paige  (N.  Y.), 

239  68 

McNeill  v.  Cahill,  2  Bligh,  228  446 

McNiel  v.  Holbrook,  12  Pet.  84     411,  624 
McRea  v.  Branch  Bank  of  Ala.,  19 

How.  376  99,  101 

Mc Williams  Manuf.  Co.  v.  Blundell, 

11  Fed.  R.  419  333 

Meach  v.  Chappell,  8  Paige  (N.  Y.), 

135  408 

Mead  v.  Lord  Orrery,  3  Atk.  285  382 

Meade  v.  Beale,  Taney's  Dec.  339  5,  6,  7 

v.  Keane,  3  Cranch  C.  C.  51    430, 431 

Meath  v.  Phillips  County,  108  U.  S. 

553  10,  197 

Mechanics'   Bank    v.    Seton,  1    Pet. 

299  102,  431 

Medsker  v.  Bonebrake,  108  U.  S.  66     462 
Meier  v.  Kansas  Pac.  R.  R.   Co.,  5 

Dill.  476  386 

Meigs  v.  McClung,  9  Cranch,  11  73 

Meissner  v.  Buck,  28  Fed.  It.  161  247 

Melius  v.  Thompson,  1  Cliff.  125         206, 
257,  260,  264 
Memphis  v.  United  States,  97  U.  S. 

293  536 

Memphis  City  v.  Dean,  8  Wall.  64      190, 

193 
Menzies  v.  Rodriguez,  1  Price,  92  335 
Mercantile  Trust  Co.  v.  Kanawha  & 

O.  Ry.  Co.,  39  Fed.  R.  337  12,  346 


liv 


TABLE   OF   CASES. 
[References  are   to  pages.] 


Allen,    121 


591 

553 

376 
585 
16, 


Merchants'  Ins.   Co. 

U.  S.  67 
Merchants'  Nat.  Bank  v.  State  Nat. 

Bank.  3  Cliff.  201 
Merchants'  &  M.  Nat.  Bank  v.  Kent 

Circuit  Judge,  43  Mich.  292 

v.  Wheeler,  13  Blatchf.  218 

Meriwether  v.  Garrett,  102  U.  S.  472 

239,  356,  357,  536 
Merriam  v.  Haas,  3  Wall.  687  601 

Merrill  v.  Dawson,  Hempst.  563  428, 429, 

430,  431 
Merryfield  v.  Jones,  2  Curt.  306  339 

Mersman  v.  Werges,  112  U.  S.  139         33 
Merwin  v.  Smith,  1  Green  Ch.  (N.J.) 

182 
Metal  Stamping  Co.  v.  Crandall,  18 

Off.  Gaz.  1531 
Metcalf  v.  Hervey,  1  Ves.  Sen.  248 


463 

268 
142, 


143,  144,  173 

v.  Watertown,  128  U.  S.  586  25 

v.  Williams,  104  U.  S.  93  14 

Metcalfe  v.  Metcalfe,  1  Keen,  74  264 

v.  Pulvertoft,  1  Ves.  &  B.  180       377 

Metier  v.  Metier,  19  N.  J.  Eq.  457  417 
Metropolitan  G.  &  S.  Exch.  v-  Chicago 

Board  of  Trade,  15  Fed.  R.  847  335 
Metropolitan  R.  R.  Co.  v.  Moore,  121 

U.  S.  558  559 

Meux  v.  Bell,  6  Sim.  175  144 

Mever  v.  Johnston,  53  Ala.  237  365,  366 
Meyers  v.  Block,  120  U.  S.  206  9 

v.  Busby,  32  Fed.  R.  670  215 

Micas  v.  Williams,  104  U.  S.  556  616 

Michoud  v.  Girod,  4  How.  503  467 

Micklethwaite  v.  Atkinson,    1    Coll. 

173  219,  225 

Middleton  v.  Bankers'  &  M.  Tel.  Co., 

32  Fed.  R.  524  461 

v.  Dodswell,  13  Ves.  266  377 

v.  Sherburne,  4  Y.  &  C.  358  449 

Misdiorucci    „.  Migliorucci,    1    Dick. 

147  499 
Milburn,  Ex  parte,  9  Pet.  704,  n.  545 
Miller  v.  Buchanan,  5  Fed.  R.  366  216 
v.  Chicago,  B.  &  Q.  R.  R.  Co.,  17 

Fed.  R.  97  579 

v.  Cotten,  5  Ga.  341  114 

v.  Fenton,  11  Paige  (N.  Y.),  18     189 

Jamison,  9  C.  E.  Green  (N.  J.), 


41 


126 
614 
590 


v.  Joseph.  17  Wall.  655 

v.  Kent,  18  Fed.  R.  561 

r.  Liggett  &  M.  Tobacco  Co.,  7 

Fed.  R.  91  434 

v.  McElroy,  1  Am.  L.  Reg.  198     315 

v.  Scott,  6  Phila.  (Pa.)  484     412,  532 

v.  Tobin,  18  Fed.  R.  609  585 

v.  Young,  2  Cranch  C.  C.  53  424 

Milkr-Magee    Co.    v.    Carpenter,    34 

Fed.  R.  433  22,  170 

Milligan  v.  Lalance  &  G.  Manuf.  Co., 

21  Blatchf.  407  ;  17  Fed.  R.  465        587 

v.  Milledge,  3  Cranch,  220      96,  190, 

408 


Milligan  v.  Mitchell.  1  M.  &  K.  446  306 
Milliken  v.  Ross,  9  Fed.  R.  855  559 

v.  Selye,  3  Den.  (N.  Y.)  54  407 

Millington  v.  Fox,  3  M.  &  C.  338  477, 478 
Mills  v.  Dennis,  3  Johns.  Ch.  (N.  Y.) 

367  164,  223,  471 

v.  Fry,  1  Ves.  &  B.  382,  n.  440 

v.  Hurd,  32  Fed.  R.  127  96,  124 

v.  Northern  Ry.  of  B.  A.  Co.,  23 

L.  T.  n.  s.  71S  299,  345 

v.  Scott,  99  U.  S.  25  9,  558 

Miltenberger  v.  Logansport  Ry.  Co., 

106  U.  S.  286        83,  349,  350,  351,  365, 

366,  367,  368,  378,  379 

Milward  v.  Welden,  Tothill,  101  233 

Milwaukee  v.  Koeffler,  116  U.  S.  219      16 

Milwaukee   R.  R.   Co.,  Ex  parte,   5 

Wall.  188  535 

Milwaukie  &  M.  R.  R.  Co.  v.  Soutter, 

2  Wall.  440  467 

v. ,  2  Wall.  510        344,  346,  387 

Miner  v.  Markham,  28  Fed.  R.  387      159, 

161,  412 
Mining  Co.  v.  Taylor,  100  U.  S.  37  554 
Minnesota  Co.  v.  St.  Paul  Co.,  2  Wall. 

609  28,  110,  111,  207,  272,  277 

Minturn  v.  Larue,  McAll.  370  333 

Minuse  v.  Cox,  5  Johns.  Ch.  (N.  Y.) 

441  497 

Mirzan,  Ex  parte,  119  U.  S.  584  546 

Mississippi  v.  Johnson,  4  Wall.  475  15, 
68,  150,  159,  322 
Mississippi  &  Mo.  R.  R.  Co.  v.  Crom- 
well, 91  U.  S.  643  13,  19,  300 

v.  Ward,  2  Black,  485         24,  98,  99, 

109,  308,  596 
Missouri  v.  Iowa,  7  How.  660  77 
Missouri,  K.  &  T.  R.  R.  Co.  v.  Dins- 
more,  108  U.  S.  30  467 
v.   Scott,    13    Fed.    R.   793;    4 

Woods,  386  303 
v.  Texas  &  St.  L.  Ry.  Co.,  10 

Fed.  R.  497  309 

Missouri  Pacific  Ry.  Co.  ».  Chicago  & 

A.  Rv.  Co.,  132  U.  S.  191  559 
v.  Texas  &  P.  Ry.  Co.,  31  Fed. 

R.  862  368 

y. 33  Fed.  R.  701  361 

„. 1  38  Fed.  R.  775  482,  483 

Mitchell.  Ex  parte,  12  S.  C.  83  367 

r.  Bunch,  2  Paige  (N.  Y.),  606      390 

v.  Great  Works  M.  &  M.  Co.,  2 

Story,  648  14 

v.  Harmony.  13  How.  115  73 

Mix  v.  Andes  Ins.  Co.,  74  N.  Y.  53  574 
Moan  v.  Wilmarth,  3  Woodb.  &  M. 

399  550 

Mobile  &  M.  Ry.  Co.  v.  Jurey,  111 

U.  S.  584    '  560 

Mobile  County  v.  Kimball,  102  U.  S. 

691  136 

Moffat  v.  United  States,  112  U.  S.  24     12, 

109,  139 
Mohawk  &  H.  R.  R.  Co.  v.  Clute,  4 

Paige  (N.  Y.),  384  143,  146 


TABLE    OF    CASES. 
[References  are   to  pages.] 


lv 


Mollan  v.  Torrance,  9  Wheat.  537  34 

Monkhouse    v.   Corporation   of  Bed- 
ford, 17  Ves.  380  472 
Montague  (Lord)  v.  Dudman,  2  Ves. 

Sen.  396  304 

Montford  (Lord)  v.  Lord  Cadogan,  17 

Ves.  485  343 

Montross  v.  Mabie,  30  Fed.  R.  234  301 
Moodalay  v.  Morton,  1  Bro.  C.  C.  409  4 
Moody  v.  Hebberd,  11  Jur.  941  283 

Moons  v.  De  Bernales,  1  Russ.  301  447 
Moor  v.  Welsh  Copper  Co.,  1  Eq.  Cas. 

Abr.  39,  pi.  14  194,  195 

Moore  p.  Chicago,   St.  P.,  M.  &  O. 
R.  R.  Co.,  21  Fed.  R.  817  27 

v.  Crawford,  130  U.  S.  122  470 

p.  Edgefield,  32  Fed.  R.  498    24,  539 

v.  Hudson,  Madd.  &  Geld.  218      390 

v.  Huntington,  17  Wall.  417  253 

v.  Lyttle,  4  Johns.  Ch.   (N.  Y.) 

183 

v.  Meynell,  2  Vern.  614,  n. 

„. 1  i  i)ick.  30 

v.  Moore,  25  Beav.  8 

v. ,  2  Ves.  Sen.  596 


Nelson,  3  McL.  383 


175 
80 

390 
339,  508 
517,  518, 

524 
426,  427 


Moran  v.  City  of  Elizabeth,  9  Fed.  R. 


72 


538 

534 

540,  610 

211,252 

297 

969    283 

356 


Morgan,  Ex  parte,  114  U.  S.  174 

v.  Curtenius,  19  How.  8 

v.  Tipton,  3  McL.  339 

Morison  p.  Moat,  9  Hare,  241 
Morrall  v.  Prichard,  11  Jur.  n.  s. 
Morris  v.  Elme,  1  Ves.  Jr.  139 

p.  Gilmer,  129  U.  S.  315    27,  438, 590 

p.  Haywood,  6  Taunt.  569  508 

v.  Lowell  Manuf.  Co.,  3  Fisher's 

Pat.  Cas.  67 

p.  Morris,  2  Phill.  205 

v.  Slielbourne,  8  Blatchf .  266 

Morrison  p.  Arnold,  19  Ves.  670     415,  416 
p.  Bernards  Township,  35  Fed. 

R.  400 
Mortimer  v.  Fraser,  2  M.  &  Cr.  173 
Moses  v.  Macferlan,  2  Burr.  1005 

p.  Mayor,  15  Wall.  387 

p.  Wooster,  115  U.  S.  285 

Mosgrove  v.  Kountze,  14  Fed.  R.  315 
Mosher  v.  Heydrick,  45  Barb.  (N.  Y.) 

549;  30  How.  Pr.  (N.  Y.)  161 
Mosley  p.  Taylor,  2  Y.  &  J.  520 ;  1 

Keen,  601 
Moss  v.  Baldock,  1  Phill.  118 


311 
413 

33:J 


560 

182 

2 

467 
599 
270 

407 


Mossman  p.  Iligginson,  4  Dall.  12 


1')7 

r,17 

26 


Motto  v.  Bennett,  2  Fisher  Pat.  Cas. 

642 
Motteux  p.  London  Assur.  Co.,  1  Atk. 

545 
Mounsey  v.  Burnham,  1  Hare,  15 
Mouseley  v.    Basnett,   1    Ves.  &  B. 

382,  n. 
Mowry  v.  Grand  St.  &  N.  R.  Co.,  10 

Blatchf.  89;  5  Fisher  Pat.  Cas.  586    312 
Mullau  v.  United  States,  118  U.  S.  271      12 


311 

2 

228 


440 


Mullee,  In  re,  7  Blatchf.  23  506 

Muller  v.  Dows,  94  U.  S.  444       2,  26,  27, 
113,  387,  468 
Mumford  v.  Mumford,  1  Gall.  306     64,  191 
Mumm  v.  Owens,  2  Dill.  475  410 

Mumma  p.  Potomac  Co.,  8  Pet.  281  256 
Mundy  v.  Kendall,  23  Fed.  R.  591  333 
Munns  v.  Dupont,  3  Wash.  31  429 

Munson  p.  The   Mayor,  19   Fed.  R. 

313  340 

Murdock  p.  City  of  Memphis,  20  Wall. 

590  615 

Murphy  v.  O'.dis,  2  Moll.  475  2L/U 

Murray  v.  Benbow,  6  Petersd.  Abr. 

559  316 

p.  Bogue,  1  Drew.  353  31o 

v.  Holden,  2  Fed.  R.  740  575 

v.  Overstoltz,  8  Fed.  R.  110  304 

v.  Vanderbilt,  39  Barb.  (N.  Y.) 

140  345 

Murtagh  v.  Philadelphia,  1  W.  N.  C. 

(Pa.)  37 

Muscan  H.  M.  Co.  v.  American  H.  M. 

Co.,  1  Fisher  Pat.  Cas.  320  313 

Musgrave  v.  Parry,  2  Vern.  710  66,  307 
Mussel  v.  Morgan,  3  Bro.  C.  C.  74  526 
Musselman  v.  Marquis,  1  Bush  (Ky.), 

463  309 

Mussina  v.  Cavazos,  6  Wall.  355         560, 
602,  603,  607 
Mutual  L.  I.  Co.  v.  Champlin,  21  Fed. 

R.  85  568,  575 

Myers  v.  Dorr,  13  Blatchf.  22  210,  232 
—  v.  Fenn,  5  Wall.  205       290,  291,  292 

v.  State,  21  W.  L.  Bui.  404  504 

Mvrick  v.  Michigan  Cent.  R.  R.  Co., 

107  U.  S.  102  557 


N. 

Nabob  of  Arcot  v.  East  India  Co.,  3 

Bro.  C.  C.  292  202 

Nabob  of  the  Carnatic  v.  East  India 

Co.,  1  Ves.  Jr.  374  244 

Nalder  v.  Hawkins,  2  M.  &  K.  243  65,  66 
Nanney  v.  Tottey,  11  Price,  117  265 

Napier  v.  Lady  Effingham,  2  P.  Wms. 

401  471 

Nashua  &  L.  R.  R.  Co.  v.  Boston  &  L. 

R.  R.  Co.,  19  Fed.  R.  804  27 

National  Bank  v.  Bank  of  Commerce, 

99  U.  S.  608  604 

v.  Carpenter,  101  U.  S.  567     176,  235, 

244   - 1  :_i 

v.  Colby,  21  Wall.  609  '  256 

v.  Insurance  Co.,  104  U.  S.  54    3, 178, 

183,  189,  202,  205,  256,  J  !■"> 

v.  Kimball,  103  U.  S.  732       139,  339 

n  Omaha,  96  U.  H.  737  604 

National  F'nrnace  Co.  v.  Moline  M.  I. 

Works,  18  Fed.  R.  863  161,  162 

National  Manuf.  Co.  v.  Meyers,  7  Fed. 

R.  355  211 


lvi 


TABLE   OF   CASES. 
[References  are  to   pages.] 


National   Mech.   Banking   Assoc,   v. 

Mariposa  Co.,  60  Barb.  ( N.  Y. )  423     387 
National  Trust  Co.  v.  Miller,  3o  N.  J. 


Eq.  155 
Nazro  v.  Cragin,  3  Dill.  474 
Neagle,  In  re,  39  Fed.  R.  833 
Neal  v.  Foster,  34  Fed.  li.  496 


370 
549 
501,  503 
247,  24  9, 
250,  254 
577,  578 
238 


Neale  v.  Foster,  31  Fed.  R.  53 

v.  Neales,  9  Wall.  1 

Nebraska  City  Nat.  Bank  v.  Nebraska 

City  H.  G.  L.  Co.,  14  Fed.  R.  703    174, 

175 
Needham  v.  Smith,  2  Vern.  463  517 

Nellis  v.  McLanahan,  6  Fisher's  Pat. 

Cas.  286  125,  131 
v.  Pennock  Mauuf .  Co.,  38  F'ed. 

R.  739  234 

Nelson  v.  Hennessey,  33  Fed.  R.  113    571 

v.  Hill,  5  How.  127  123,  126 

v.  United  States,  Pet.  C.  C.  235    430, 

432 
Nesmith  v.  Calvert,  1  Woodb.  &  M. 

34  96,  397 

„.  Sheldon,  6  How.  41  598 

v. ,  7  How.  812  443 

Nessle  v.  Reese,  19  Abb.  Pr.  (N.  Y.) 

240  310 

Neve  v.  Weston,  3  Atk.  557  196 

Neves  v.  Scott,  13  How.  268  9,  557 

Newall  v.  Wilson,  2  De  G.  M.  &  G. 

280 
Newbery  v.  James,  2  Meriv.  446 
Newburgh  (Earl  of)  v.  Countess   of 

Newburgh,  5  Madd.  364 
Newbury  v.  Marten,  15  Jur.  166 
Newby  v.  Oregon   Cent.   Ry.  Co.,   1 

Sawy.  63  191,  204,  205 

Newcomb  v.  Wood,  97  U.  S.  581  559 

New  England,  The,  3  Sumner,  495        536 
New  England  Mut.  L.  I.  Co.  v.  Odell, 

50  Hun  (N.  Y.),  279 
New  Hampshire  v.  Louisiana,  108  U. 

S.  76 
New  Hampshire  Land  Co.  v.  Tilton, 

29  Fed.  R.  764  495,  530 

New  Jersey  v.  New  York,  6  Pet.  323 


312 
297 


lis 

471 


146 


7S 


New  Jersey  Cent.  R.  R.  Co.  v.  Mills, 

113  U.  S.  249 
Newman,  Ex  parte,  14  Wall.  152 
v.  Davenport,  9  Baxt.    (Tenn.) 

538 
— -  v.  Moody,  19  Fed.  R.  858 


161 

100 
535 

374 

191,  292, 

293 

New  Orleans  v.  Construction  Co.,  129 
U.  S.  223  616 

v.  Morris,  105  U.  S.  600         3,  12,  17 

v.  Steamship  Co.,  20  Wall.  387     507 

v.  Winter,  1  Wheat.  91  26 

New  Orleans  C.  &  B.  Co.  v.  Stafford 

12  How.  343  95,  96,  102,  103 

New  Orleans  G.  L.  &  B.  Co.  v.  Dudley, 

8  Paige  (N  Y.),  452  449 

Newport  v.  Bury,  23  Beav.  30  381 


New  Providence  v.  Halsey,  117  U.  S. 

336  438 

Newton  v.  Askew,  6  Hare,  319  160 

v.  Earl  of  Egmont,  4  Sim.  574         89 

New  York  v.  Connecticut,  4  Dall.  1  335 
New  York  (Mayor  of)  v.  Miln,  9  Pet. 

85  620 

New  York  B.  &  P.  Co.  v.  Magowan, 

27  Fed.  R.  Ill  15 
v.  New  Jersey  C.  S.  &  R.  Co.,  32 

Fed.  R.  755  496 

New  York  El.  R.  R.  Co.  v.  Fifth  Nat. 

Bank,  118  U.  S.  608  595 

New  York  G.  S.  Co.  v.  Buffalo  G.  S. 

Co.,  20  Fed.  R.  505  297 

New  York  G.  &   I.  Co.  v.  Memphis 

Water  Co.,  107  U.  S.  205  7,  17 

New  York  &  B.  C.  P.  Co.  v.  New  York 

C.  P.  Co.,  9  Fed.  R.  578      413,  414,  418 


Niccol  v.  Wiseman,  2  Vern.  46 
Nicholas  v.  Murray,  5  Sawy.  320 

v.  Nicholas,  Prec.  in  Ch.  546 

Nicholls  v.  Nicholls,  1  Atk.  409 
v.  White,   1  Cranch  C.  C.  58 


233 
191 
303 
3 
429, 
430 
494 
160 
331 


Nichols  v.  Brunswick,  3  Cliff.  88 

v.  Horton,  14  Fed.  R.  327 

v.  Kearsly,  2  Dick.  645 

Nicholson  v.  Squire,  16  Yes.  259    284,  287 
Nickerson  v.  Atchison,  T.  &  S.  F.  R. 

R.  Co.,  30  Fed.  R.  85 ;  1  McCra.  383    9, 

441 
Nielsen,  Petitioner,  131  U.  S.   176    543, 

544 
Nixon  v.  Albion  M.  I.  Co.,  L.  R.  2  Ex. 

338  396 

Noe  v.  Gibson,  7  Paige  (N.  Y.),  513      371 
Noel  v.  King,  2  Madd.  392  253 

Noonan  v.  Lee,  2  Black,  499  8 

Norris  v.  Hassler,  22  Fed.  R.  401  121 

v. ,  23  Fed.  R.  581  493 

v.  Jackson,  9  Wall.  125  554,  555 

v.  Le  Neve,  3  Atk.  26  520 

North  i'.  Earl  of  Strafford,  3  P.  Wins. 

148  172 

v.  Kershaw,  4  Blatchf.  70  84 

North  Carolina  R.  R.  Co.  v.  Drew,  3 

Woods,  691  423,  430,  431 

Northcote  v.  Northcote,  1  Dick.  22        226 
Northern  Indiana  R.  R.  Co.  v.  Mich. 

Cent.  R.  R.  Co.,  15  How.  233  99 

Northern  Pacific  R.  R.  Co.  v.  Burling- 
ton &  Mo.  R.  R.  Co.,  2  McCra.  203  ; 

4  Fed.  R.  298  301,  309 

r.  Mares,  123  U.  S.  710  557 

v.  Paine,  119  U.  S.  561  529,  585 

v.  St.  Paul,  M.  &  M.  R.  R.  Co.,  2 

McCra.  260  ;  4  Fed.  R.  688  339 

Northern  R.  R.  Co.  v.  Ogdensburg  & 

L.  C.  R.  R.  Co.,  18  Fed.  R.  815        247, 

250 

v. ,  20  Fed.  R.  347  247,  250 

Northey  v.  Pearce,  1  Sim.  &  S.  420       326 
Norton  v.  European  &  N.  A.  Ry.  Co., 

32  F'ed.  R.  865  438 


TABLE   OF    CASES. 


lvii 


[References   are  to  pages.] 


Norton  v.  Hepworth,  1  Hall  &  Tw.  158 

156,  264,  268 
Norway,  The,  1  Ben.  493  428 

,  2  Ben.  121  428 

Norwood,  Ex  parte,  3  Biss.  504  68,  370 
Nourse  v.  Allen,  4  Blatehf.  376  125,  131 
Noyes  v.  Canada,  30  Fed.  R.  665  162 

v.  Willard,  1  Woods,  187        202,  205 

Nudd  v.  Burrows,  91  U.  S.  426    555,  556 


o. 

Oates  v.  National  Bank,  100  U.  S.  239 
Ober  v.  Gallagher,  93  U.  S.  199    27,  33, 
O'Callaghan  v.  Cooper,  5  Ves.  117 
Odorless  Excavating  Co.  v.  Lauman, 

12  Fed.  R.  788 
O'Dowd  v.  Russell,  14  Wall.  402 
Oelrichs  v.  Spain,  15  Wall.  211 
Offeley  v.  Morgan,  Cary,  153 
Ogden  v.  Gibbons,  Halst.  Dig.  (N.  J.) 

172 
Ogilvie  v.  Heme,  13  Ves.  563 
v.  Knox  Ins.  Co.,  2  Black,  539 

v. ,  22  How.  380  88,  98, 

Ogle  v.  Cook,  1  Ves.  Sen.  177 

v.  Morgan,   1   De   G.  M.  &  G. 

359 
Oglesby  v.  Attrill,  12  Fed.  R.  227 

v. ,  14  Fed.  R.  214  238, 

Ogsbury  v.  LaFarge,  2  N.  Y.  113 
O'Hara  v.  MacConnell,  93  U.    S.  150 

65,  78,  80,  99,  152,  164,  165, 168,  169, 
v.   Shepherd,   3   Md.   Ch.   Dec. 

306 
Ohio  v.  Ellis,  10  Ohio,  456 
Ohio  Life  Ins.  &  T.  Co.  v.  Debolt,  16 

How.  416  444, 

Ohio   &  Miss.  R.  R.  Co.  v.  Wheeler, 

1  Black,  286 
Olcott  v.  Supervisors,  16  Wall.  678 
Oldfield  v.  Cobbett,  1  Phill.  613    288, 
Oldham  v.  Eboral,  Coop.  Sel.  Cas.  27 

v.  Oldham,  7  Ves.  410 

Oliver  v.   Decatur,  4   Cranch   C.   C. 

458  179, 

v. ,  4  Cranch  C.  C.  592 

v.  Hamilton,  2  Anstr.  453 

v.  Piatt,  3  How.  333    87, 123, 126, 

v. ,  2  McL.  268 

Olney  v.  Tanner,  10  Fed.  R.  101  68 

Olyphant  v.  St.  Louis  O.  &  S.  Co.,  22 

Fed.  R.  179 

v. ,  28  Fed.  R.  729 

Omaha   Horse   Ry.  Co.  v.  Cable   T. 

Co.,  33  Fed.  R.  689 
0'Mahon3y  v.  Belmont,  62  N.  Y.  133 

y. ,  37  N.  Y.  Super.  Ct.  223 

O'Neil  v.  Kansas  City,  S.  &  M.  R.  Co., 
31  Fed.  R.  663 


444 
587 
496 

312 
599 
191 
180 

240 

199 
88, 
290 
290 
450 

516 
524 
294 
446 

601 

273 
126 

558 

27 
557 
289 
267 
392 

205 
263 
343 
127 
87 
370, 
376 

350 

354 

272 

386 
386 

493 


Ord  v.  Huddleston,  2  Dick.  510  191 

v.  Noel,  6  Madd.  127  521 

Oregon  Iron  Works,  In  Re,  4  Sawy. 

169 ;  17  N.  B.  R.  404  17 

Oregon  &  T.    Co.  v.   Northern  Pac. 

Ry.  Co.,  32  Fed.  R.  428  274 

O'Reilly  v.  Edrington,  96  U.  S.  724  604 
Orendorf  v.  Budlong,  12  Fed.  R.  24  173 
Ormsby  v.   Union   Pac.  R.  R.  Co.,  4 

Fed.  R.  706  325 

Orr  v.  Littlefield,  1  Woodb.  &  M.  13 

312  336 

v.  Merrill,  1  Woodb.  &  M.  376    '  336 

Ortley    v.    Messere,    7    Johns.    Ch. 

(N.  Y.)  139  67 

Orvis  v.  Powell,  98  U.  S.  176  9,  473 

Osborn  v.  Bank  of  U.  S.,    9  Wheat. 

738  4,  25,  75,  98,  305,  323,  396 

Osborne  v.  Barge,  30  Fed.  R.  805        247. 

249,  251 

v.  Harvey,  1  Y.  &  C.  N.  R  116     377 

Osburne  v.   Barter,   Choyce   Cas.  in 

Ch.  176  308 

Osgood  v.  Chicago,  D.  &  V.  R.  R.  Co., 

6  Biss.  330  574,  575 

Overton  v.  Memphis  &  L.  R.  R.  Co., 

10  Fed.  R.  866  378 

Owen  v.  Curzon,  2  Vern.  237         259,271 

v.  Homan,  4  H.  L.  C.  997  346 

v.  Thomas,  3  M.  &  K.  353  396 

Owens  v.  Ohio  Cent.  R.  R.  Co.,  20 

Fed.  R.  10  11 

Owing's  Case,  1  Bland  (Md.),  370  67, 

476 
Owings  v.  Kincannon,  7  Pet.  399  598 


P. 

Paca  v.  Dutton,  4  Mo.  371  405 

Pacific  Nat.  Bank  v.  Mixter,  124  U. 

S.  721  549 

Pacific  R.  R.  v.  Ketchum,  101  U.  S. 

289  26,  95,  437,  601 

Pacific  Railroad  Removal  Cases,  115 

U.  S,  1  25 

Pacific  R.  R.  of  Mo.  v.  Atlantic  &  P. 

R.  R.  Co.,  20  Fed.  R.  277       14,  88, 125 

v.  Ketchum,  95  U.  S.  1  245 

v.  Missouri   Pac.  R.  R.  Co.,  Ill 

U.  S.  505  28,  110,  111,  116,  156,  171, 
172,  177,  181,  199,  397,  526 
v. 1  3  Fed.  R.  772 ;  1  McCra. 

647  150,  1".7 

Packer  v.  Nixon,  10  Pet.  408  597 

Packet  Co.  v.   Catlettsburg,  105   U. 

S.  559  171,172 

Packington  v.  Packington,  1    Dick. 

101  337 

Pagan  v.  Sparks,  2  Wash.  325  86 

Page  v.  Fall  Kiver,  W.  &  P.  R.  Co., 

31  Fed.  R.  257  27 
v.   Holmes  B.    A.  Tel.  Co.,    18 

Blatehf.  118;  2  Fed.  R.  330  290,  291, 
312,  515,  516,  520 


lviii 


TABLE   OF   CASES. 
[References  are  to  pages.] 


Paine  v.  Central  Vt.  R.  K.  Co.,  118 

U.  S.  152  555 

Palk  v.  Lord  Clinton,  12  Ves.  63  137 

Palmer  v.  Foote,  7  Paige  (N.   Y.), 
,     437  89 

v.  Parkhurst,  1  Chan.  Cas.  112       G7 

v.  Stevens,  100  Mass.  461  93,  98 

v.  Travers,  20  Fed.  R.  501  324 

v.  Vaughan,  3  Swanst.  173  356 

v.  Walesby,  L.  R.  3  Ch.  732         435 

Pannell  v.  Tayler,  Turn.  &  R.  96  393 

Pannill  v.  Eliason,  3  Cranch  C.  C. 

358  426 
Parcels  v.  Johnson,  20  Wall.  653  614 
Paris,  Ex  parte,  3  Woodb.  &  M.  227  489 
Parker,  Ex  parte,  120  U.  S.  737  534 
,  Petitioner,  131  U.  S.  221 


534,  537, 
539 


285 


v.  Bigler,  1  Fisher's  Pat.  Cas. 


493 


371 

473 

283 

11 


330 
252 
450 

122 

428 


v.  Browning,   8  Paige   (N.  Y.), 

388 

v.  Dacres,  120  U  S.  43 

v.  Francis,  9  Jur.  GIG,  n. 

v.  Hall,  2  Fisher's  Pat.  Cas.  02 

v.  Hallock,  2  Fisher's  Pat.  Cas. 

543,  n.  10 

v.  Hawk,  2  Fisher's  Pat.  Cas.  58    11 

w.  Hotchkiss,  1  Wall.  Jr.  263     160, 

412 
v.  Judges  of  Circuit  Court,  12 

Wheat.  561 
v.  Leigh,  6  Madd.  115 

v.  Morrell,  2  Phill.  453 

i7.  Nightingale,  6  Allen  (Mass.), 

341 
17.  Nixon,  Baldw.  291 

v.   Sears,    1    Fisher    Pat.    Cas. 

93  312,  332 
v  Winnipiseogee  Lake  C.  &  W. 

Co.,  2  Black,  545  191,  308 

Parkersburg  v.  Brown,  108  U.  S.  487     17 
Parkhurst  v.  Kinsman,  2  Blatchf.  72    273 

v. ,  2  Blatchf.  78  333,  345 

Parkinson  v.  Laselle,  3  Sawy.  330         314 

v.  Wentworth,  11  Mass.  26  64 

Parks,  Ex  parte,  93  U.  S.  18  542,  543 

v.  Booth,  102  U.  S.  96  214 

Parmley  v.  Railroad  Cos.,  3  Dill.  25     339 
Parrot  v.  Treby,  Prec.  in  Ch.  254 
Parrott  v.  Alabama  G.  L.  I.  Co.,  5 

Fed.  R.  3!>1 
Parsons  v.  Bedford,  3  Pet.  433 
v.  Charter  Oak  L.  I.  Co.,  31  Fed. 

R.  305 

r.  Howard,  2  Woods,  1  96,  104 

17.  Lyman,  4  Blatchf.  432  84,  121 

v.  Robinson,  122  U.  S.  112  467 

Partee  v.  Thomas,  11  Fed.  R.  769         238 
Partridge  v.  Hay  craft,  11  Ves.  570      134, 

225,  227 

v.  Usborne,  5  Russ.  195 

Paschal,  Inre,  10  Wall.  483 
Patapsco,  The.  12  Wall.  451 
Patch  i;.  Ward,  L.  R.  3  Ch.  203 


478 

161 

5 

347 


521,  522 

502,  504 

595 

472 


Patrick  v.  Isenhart,  20  Fed.  R.  339       175 
Patriotic  Bank  v.  Bank  of  Washing- 
ton, 5  Cranch  C.  C.  602  217,  225 
Patterson  v.  Stapler,  7  Fed.  R.  210       84, 


239 
540 
426 
570 


o.  United  States,  2  Wheat.  221 

Paul  v.  Lowry,  2  Cranch  C.  C.  628 

v.  Virginia,  8  Wall.  168 

Paving  Co.  v.  Mulford,  100  U.  S.  147  596 
Pawlet  v.  Clark,  9  Cranch,  292  27 

Paxton  ».  Douglas,  8  Ves.  520  328 

o. ,  19  Ves.  225  177 

Payne  v.  Hook,  7  Wall.  425   8,  11,  12,  96, 

104,  123 


Peabody  v.  Norfolk,  98  Mass.  452 
Peachie  v.  Twyecrosse,  Cary,  113 
Peake  v.  Highfield,  1  Russ.  559         4 
Peale  v.  Phipps,  8  How.  256 

v. ,  14  How.  368 

Pearne  v.  Lisle,  Ambl.  75 
Pearse  v.  Brook,  3  Beav.  337 
Pearson  v.  Ward,  1  Cox  Eq.  177 
Peaslee  v.  Haberstro,  15  Blatchf.  472 
Peay  i7.  Schenck,  Woolw.  175 
Peck,  Ex  parte,  3  Blatchf.  113 


297 

180 

448 

603 

11 

389 

408 

4 

531 

251 

413, 

424 

216,  222 

622 


411 


v.  Peck,  Mosely,  45 

v.  Sanderson,  18  How.  42 

Pedrick  v.  White,  1  Met.  (Mass.)  76 
Pelham  v.  Rose,  9  Wall.  103 
Pelham   (Lord)  v.  Duchess  of  New- 
castle, 3  Swanst.  289,  n. 

v. ,  3  Swanst.  293,  n. 

v.  Lord  Harlev,  3  Swanst.  291,  n.  510 

Pelton  ».  National  Bank,  101  U.  S. 


276 
597 


510 
510 


143 
Pelzer  Manuf.  Co.  v.  St.  Paul  F.  &  M. 

I.  Co.,  40  Fed.  R.  185 
Pendleton  v.  Evans,   4  Wash.  391 

v.  Fay,  3  Paige  (N.  Y.),  204 


301 

586 
1G7, 
168 
268, 
273 


Pen  fold  v.  Ramsbottom,   1   Swanst. 

552  184 

Peninsular  Iron  Co.  v.  Stone,  121  U. 

S.  631  481,  590 
Penn  v.  Calhoun,  121  U.  S.  251  349 
v.  Lord  Baltimore,  1  Ves.  Sen. 

444  2,  468 

Pennoyer  v.  Neff,  95  U.  S.  714  199 

Pennsylvania     v.   Wheeling     &    B. 

Bridge  Co.,  13  How.  518  308 

Pennsylvania  R.  R.  Co.  v.  St.  Louis, 

A.  &  T.  H.  R.   R.   Co.,  118  U.  S. 

290  14,  27 

Penny  v.  Watts,  2  Phill.  149  103 

Pentlarge  v.  Beeston,  1  Fed.  R.  862      333 

v.  Kirby,  20  Fed.  R.  898  480 

w.   Pentlarge,  19  Fed.   R.  817    200, 

475 

». ,  22  Fed.  R.  412  200,  275, 

475 

v. ,  14  Reporter,  579  324 

Pentleton  v.  Forbes,  1  Cranch  C.  C. 

507  426 


TABLE   OF   CASES. 
[References  are  to  pages.] 


lix 


197 
506 


388 


People  v.  Albany  &  Vt.  R.  R.  Co.,  24 

N.  Y.  261  299 

v.  Brower,  4  Paige  (N.  Y.),  405  293, 

505 

v.  Cooper,  22  Hun  (N.  Y),  515 

v.  Craft,  7  Paige  (N.  Y.),  325 

v.  Globe  Mat.  L.  I.  Co.,  57  How. 

Pr.  (N.  Y.)  481 
v.  National  Trust  Co.,  82  N.  Y. 

283  372,  374 

v.  Norton,  1  Paige  (N.  Y.),  17       378 

v.  Rensselaer  Common  Pleas,  6 

Wend.  (N.  Y.)  513  409 
v.  Universal  L.  I.  Co.,  30  Hun 

(N.  Y.),  142  374 

People's  Bank  v.  Calhoun,  102  U.  S. 

256  437,  570 

Peper  v.  Fordyce,  119  U.  S.  469   480,  590 
Perine  v.  Dunn,  4  Johns.  Ch.  (N.  Y.) 


140 


v.  Hart,  11  Wheat.  237 

v.  Hendryx,  23  Fed.  R.  418 


472 

Perkins  v.  Fourniquet,  14  How.  328  564, 

624 
597 
585, 
586 
275 
535 
139 
125,  131 
265 


v. ,  31  Fed.  R.  522 

Perry,  Ex  parte,  102  U.  S.  183 

v.  Carr,  41  N.  H.  371 

v.  Corning,  7  Blatchf.  195 

v.  Jenkins,  1  M.  &  Cr.  122 

v.  Mechanics'  Mut.  Ins.  Co.,  11 

Fed.  R.  478  530 

v.  Parker,  1  Woodb.  &  M.  280    326, 

329 

v.  Phelips,  17  Ves.  173         516,  517, 

518,  519,  520,  524 


v.  Sharpe,  8  Fed.  R.  15 

v.  Truefit,  6  Beav.  Gti 

v.  Walker,  4  Beav.  452 

Person  v.  Greer,  66  N.  Y.  124 
Peters  v.  Prevost,  1  Paine,  64 

v.  Robinson,  1  Dick.  116 

Pettibone  v.  Derringer,  4  Wash.  215 
Peyton  v.  Robertson,  9  Wheat.  527 
17.  Veitch,  2  Cranch  C.  C.  123 


304 
317 
283 
160 
8,  427 
257 
425 
596 
424, 
426 
Pfemschmidt  v.  Kelly  Mercantile  Co., 

32  Fed.  R.  667  514 

Phelps  v.  Canada  Cent.  R.  R.  Co.,  19 
Fed.  R.  801  588 

v.  Elliott,  26  Fed.  R.  881        685,  586 

v. ,  3d  Fed.  R.  396  244 

v.  McDonald,  99  U.  S.  298  133 

v.  Oaks,  117  U.  S.  236  27,  529 

v.  O'Brien  County,  2  Dill.  518  9 

Philadelphia   Fire     Assoc,    v.    New 

York,  119  U.  S.  110  570,615 

Philippi  v.  Philippe,  115  U.  S.  151        176 
Philips  v.  Carew,  1  P.  Wms.  117  142,  415 

v.  Derbie,  1  Dick.  98  259 

v.  Langhorn,  1  Dick.  148  338 

Phillips  v.  Neffley,  117  U.  S.  665  561,  562 

v.  Prentice,  2  Hare,  542  408 

Phoenix  Ins.  Co.,  Ex  parte,  117  U.  S. 
367  596 


Phoenix  Ins.  Co.,  Ex  parte,  118  U.  S. 
610  533 

v.  Wulf,  1  Fed.  R.  775  151,  152 

Piatt  v.  Oliver,  1  McL.  295  203 

v.  Vattier,  9  Pet.  405  236 

Pickard  v.  Mattheson,  7  Ves.  293  513 

Pickering  v.  Bishop  of  Ely,  2  Y.  &  C. 

Ch.  Cas.  249  319 

Pickett's  Heirs  v.  Legerwood,  7  Pet. 
144  603,  607 

v. ,  8  Pet.  144  562 

Picquet  v.  Swan,  5  Mason,  35         152,  158 

v. ,  5  Mason,  501  158 

Pictet  A.  I.  Co.  v.  New  York  I.  M.  Co., 

12  Fed.  R.  816  435 

Piek  v.  Chicago  &  N.  W.  Ry.  Co.,  6 

Biss.  177  322 

Pierce  v.  Cox,  9  Wall.  786  604,  605 

v.  Webb,  3  Bro.  C.  C.  15,  n.  4 

v.  West's  Ex'rs,  Pet.  C.  C.  351     232 

v.  ,  3  Wash.  354  236 

Pierpont  v.  Fowle,  2  Woodb.  &  M.  23  311, 

313 
Pierson  v.  Robinson,  3  Swanst.  139,  n. 
Pieters  v.  Thompson,  G.  Coop.  294 
Pigot  v.  Stace,  2  Dick.  496 
Pike  v.  Nicholas,  L.  R.  5  Ch.  251 
Pilla   v.  German   School  Assoc,  23 

Fed.  R.  700 
Pillow  v.  Pillow,  5  Yerg.  (Tenn.)  420  137 
Pincers  v.  Robertson,  24  N.  J.  Eq.  348  224 
Pindar  v.  Smith,  Madd.  &  G.  48  451 

Pine  Grove  v.  Talcott,  19  Wall.  666      557 
Pinkerton  v.  Barnsley  Canal  Co.,  3 

Y.  &  J.  277,  n. 
Pinkus  v.  Peters,  5  Beav.  253 
Piquignot  v.  Pennsylvania  R.  R.  Co., 

16  How.  104 
Pirie  v.  Tvedt,  115  U.  S.  41 
Pitcher  v.  Helliar,  Dick.  580 

v.  Hennessey,  48  N.  Y.  415 

Pitkin  County  Mining  Co.  v.  Markell, 

33  Fed.  R.  386 


85 
439 
205 
315 

586 


406 
85 

591 

571 

344 

3 


30 

502,  504 

523 

359 

338 


Pitman,  Re,  1  Curt.  186 

Pitt  v.  Earl  of  Arglass,  1  Vern.  441 

r  v.  Snowden,  3  Atk.  750 

Pitts,  In  re,  9  Fed.  R.  542 

v.  Edmonds,  2  Fisher  Pat.  Cas. 

52  213 

v.  Powledge,  56  Ala.  147  247 

Piatt  v.  Jones,  96  N.  Y.  24  356 

v.  Mead,  9  Fed.  R.  91  116,  172 

Plitt,  Ex  parte,  2  Wall.  Jr.  453       488,  497 
Plunket  v.  Person,  2  Atk.  51  103 

Plymouth  (Countess  of)  v.  Bladon,  2 

Vern.  32  440 

Plymouth  Min.  Co.  v.  Amador  Canal 

Co.,  118  U.  S.  264  571 

Poindexter  !•.  Greenhow,  114  U.  S.  270    72 
Polk's  Lessee  v.  Wendal,  9  Cranch, 

87  443 

Pollard  r.  Bailey,  20  Wall.  526  98 

v.  Vinton,  105  U.  S.  7  557 

Pollers  v.  Black  River  Imp.  Co.,  113 

U.  S.  81  002,  614 


Ix 


TABLE   OF   CASES. 
[References  are  to  pages.] 


Pomroy  v.  Harter,  1  McL.  448 
Pond  v.  Vermont  Valley  R.  R.  Co. 

12  Blatchf.  280 
Poole,  In  re,  2  Mac  Ar.  (I).  C.)  583 

v.  Franks,  1  Moll.  78 

v.  Thatcherdeft,  19  Fed.  R.  49 

Poor  v.  Carleton,  3  Sumn.  70 


349 
100 

64 

468 


490 

437 
545 
496 
29 
332,  335, 
336 

Poppenhusen  v.  Falke,  4  Blatchf.  493  123, 

131,  312 
v.  New  York  G.  P.  Comb  Co.,  4 

Blatchf.  184  ;  2  Fisher  Pat.  Cas.  74  220, 

322 
Porter  v.  Pittsburgh  B.  S.  Co.,  120 

U.  S.  649 

v.  Sabin,  36  Fed.  R.  475 

Portland  (Countess  of)  v.  Prodgers,  2 

Vern.  104 
Port  Royal  R.  R.  Co.  v.  Hammond, 

58  Ga.  523 
Portugal  (Queen  of)  v.  Glyn,  7  CI.  & 

F.  466  417 

Post  v.  Supervisors,  105  U.  S.  667       443, 

558 
v.  Toledo,  C.  &  St.  L.  R,  R.  Co., 

144  Mass.  341 ;  4  New  Eng.  Rep.  221    8 
Postmaster-General  v.  Rice,  Gilp.  554  400 

v.  Trigg,  11  Pet.  173  537 

Potter  v.  Gardner,  12  Wheat.  499  85 

v.  Mack,  3  Fisher  Pat.  Cas.  428    340 

v.  National  Bank,  102  U.  S.  163 

v.  Potter,  1  Ves.  Sen.  274 

v.  Third  Nat.  Bank,  13  Chic.  L. 

N.  102 

v.  Whitney,  1  Lowell,  87 

Potts  v.  Hahn,  32  Fed.  R.  660 

v.  Leighton,  15  Ves.  273 

v.  Warwick  &  B.  C  N.  Co.,  Kay, 

143 
Poultney  v.    Citv   of  Lafayette,  Ex 

parte,  12  Pet.  472  57,  163,  210,  436, 

537,  538 
Powder    Co.    v.   Powder   Works,   98 

U.  S.  126 
Powell  v.  Kane,  5  Paige  (N.  Y.),  265 

v.  Powell,  Madd.  &  G.  53 

v.  Waldron,  89  N.  Y.  328 

v.  Wright,  7  Beav.  449 

Power   v.  Semmes,  1    Cranch  C.  C. 

247 
Powys  v.  Blagrave,  18  Jur.  462 
Pratt  v.  Fitzhugh,  1  Black,  271 
v.  Northam,  5  Mason,  95 


411 

395 

410 
312 
123 
383 

380 


185 
408 
471 
356 
85 


412 

380,  381 

595 

8,  10,  12, 

197 

Prescott,  Ex  parte,  2  Gall.  146  488 

Preston  v.  Walsh,  10  Fed.  R.  315  99,  337, 

442 
Prevost  v.  Gorrell,  5  W.  N.  C.  (Pa.) 

151  502 

Price  v.  Abbott,  17  Fed.  R.  506  342 

v.  Berrington,  3  Macn.  &  G.  486 

119,  448 

v.  Coleman,  21  Fed.  R.  357  116,  124, 

127 
v.  ■ ,  22  Fed.  R.  694  481 


Price  v.  Morris,  5  McL.  4  426 

v.  Price,  2  Smith's  Ch.  Pr.  76       448, 

449 
Prince  v.  Towns,  33  Fed.  R.  161  499 

Prince  Albert  v.  Strange,  1  Macn.  & 

G.  25  298,  316,  319 

Pritchard  v.  Fleetwood,  1  Meriv.  54     344 

v.  Quinchant,  Ambl.  147  234 

Proctor  v.  Brill,  16  Fed.  R.  791  480 

Prout  0.  Roby,  15  Wall.  471  97,  100 

Prouty  v.  Draper,  2  Story,  199  492 

Providence  &  N.  Y.  S.  S   Co.  v.  Hill 

Manuf.  Co.,  109  U.  S.  578  304 

Provident  Savings  Soc.  v.  Ford,  114 

U.  S.  635  25,  162 

Prudential  Assur.  Co.  v.  Knott,  L.  R. 

10  Ch.  142 

0.  Thomas,  L.  R.  3  Ch.  74 

Pruen  v.  Lunn,  5  Russ.  3 

Public  G.  &  S.  Exchange  ?>.  Western 

Un.  Tel.  Co.,  16  Fed.  R.  289;  11 

Biss.  568 

Public  Schools  v.  Walker,  9  Wall.  603  623 
Puetz  v.  Bransford,  31  Fed.  R.  458        214, 

254 

„. (  32  Fed.  R.  318 

Pullan  v.  Kinsinger,  2  Abb.  U.  S 


323 
143 

266 


574 


94 


Pulliam  0.  Christian,  6  How.  209 
0.  Pulliam,  10  Fed.  R.  53 


25 

322, 

323 

467 

10,  197, 

442,  443 

Pullman  P.  C.  Co.  v.  Speck,  113  U.  S. 
84  575 

v.  Texas  &  P.  Ry.  Co.,  11  Fed. 

R,  625;  4  Woods,  317  324 

Pulteney  v.  Shelton,  5  Ves.  147  283 

Purcell  v.  Miner,  4  Wall.  519  520 

Purdy   0.  Rapalye,  N.  Y.  Chancery, 

1835  386 

Purefoy  v.  Purefoy,  1  Vern.  29  175 

Pusey  v.  Pusey,  1  Vern.  273    17,  319,  325 
Putnam  v.  Day,  22  Wall.  60  519 

v.  Ingraham,  114  U.  S.  57  571 

v.  New  Albany,  4  Biss.  365      2,  224, 

249,  251,  252 


Q- 


Quackenbush   v    Leonard,  10  Paige 

(N.  Y.),  131  257 

Quarles  v.  Quarles,  2  Munf.  ( Va.)  321  476 
Queen  of  Portugal  v.  Glyn,  7  CI.  &  F. 

466  417 

Quincy  v.  Steel,  120  U.  S.  241  20,  128 

Quirolo  v.  Ardito,  1  Fed.  R.  610  445 


Rabaud  v.  De  Wolf,  1  Paine,  580 
Radcliffe,  Ex  parte,  1  Jac.  &  W.  639 


Radford  v.  Folsom,  14  Fed. 
0. ,  123  U.  S.  725 


27 
344, 
376 
97  194 

602,  604 


TABLE   OF   CASES. 
[References  are  to  pages.] 


lxi 


Raffety  v.  King,  1  Keen,  601  107 

Raht  v.  Attrill,  106  N.  Y.  423  355 

Railroad  Co.,  Ex  parte,  95  U.  S.  221     253, 

269,  270,  434,  534,  605 

v.  Bradleys,  7  Wall.  575         407,  605 

v.  Ellerman,  105  U.  S.  166      l'J,  299, 


v.  Falconer,  103  U.  S.  821 

v.  Gladmon,  15  Wall.  401 

v.  Harris,  12  Wall.  65 

v.  Howard,  7  Wall.  392 

v.  Koontz,  104  U.  S.  5 

v.  Lockwood,  17  Wall.  357 

v.  National  Bank,  102  U.  S. 


11 


300 

443 

557 

27 

90 

584 

557 

444, 

557 

90,  104 

410 


Reay  v.  Raynor,  19  Fed.  R.  308    237,  238, 

133 

315 
315 
369 
275 
16 


v.  Orr,  18  Wall.  471 

v.  Pollard,  22  Wall.  341 

v.  Swasey,  23  Wall.  405  467 

v.  Trook,  100  U.  S.  112  595 

v.  Wiswall,  23  Wall.  507  534 

Railroad  Companies  v.  Chamberlain, 

6  Wall.  746  28 

Railway  Co.,  Ex  parte,  101  U.  S.  711    535 

,  Ex  parte,  103  U.  S.  794  534 

v.  Allinsj,  90  U.  S.  403  434 

v.  Ramsey,  22  Wall.  322  572 

v.  Whitton's  Admr.,  13  Wall.  270     8, 

27 
Railway  R.  M.  Co.  v.  North  Hudson 

Co.  R.  Co.,  26  Fed.  R.  411  514 

Rainer  v.  Ilaynes,  Hempst.  689  424 

Randall     .  Baltimore  &  O.  R.  R.  Co., 

109  U.  S.  478  556 

v.  Howard,  2  Black,  585        133,  176, 

108 

v.  Venable,  17  Fed.  R.  163  552 

Randolph  v.  Barrett,  10  Pet.  138  239 
v.  Dickerson,   5  Paige   (N.  Y.)p 

517  268 

v.  Robinson,  2  N.  J.  L.  J.  171        251 

Rankin  v.  Huskisson,  4  Sim.  13  324 

v.  State,  11  Wall.  380  614 

Ransom  v.  Davis,  18  How.  295         88,  291 
Rantin  v.  Robertson,  2  Strobh.  Law 

(S.  C),  366 
Rashlekh  v.  Master,  1  Ves.  Jr.  201 
Ratcliffe  v.  Winch,  16  Beav.  576 
Rateau  v.  Bernard,  3  Blatchf.  244 


171 
496 
328 
26, 
306 
290 


Rattray  v.  George,  16  Ves.  232 
Rawlings   v.  Lambert,  1  Johns.  &  H 

458 
Rawlins  v.  Dalton,  2  Y.  &  C.  447 
Ray  v.  Knowlton,  11  Biss.  360 

v.  Law,  3  Cranch,  1 79 

Rayner  v.  Julian,  2   Dick.  677 

Madd.  144,  n. 

Raynes  v.  Wise,  2  Meriv.  472 

Read  v.  Consequa,  4  Wash.  174   156,  165, 

237,  334,  338 

p. ,4  Wash.  335  224,  225 

v.  Miller,  2  Biss.  12  10 

v.  Read,  1  Ch.  Cas.  115  389 

Reay  r.  Berlin  &  J.  Env.  Co.,  30  Fed. 

R.  448  237 


338 

196 
480 
467,  519 
5 
181 
390 


239 
305 
10 
605 
546 
170 


Redding  v.  Wilkes,  3  Bro.  C.  C.  401 
Reed  v.  Carusi,  Tanev,  72 

17.  Holliday,  19  Fed.  R.  325 

Reeder  v.  Seely,  4  Cow.  o  is 
Reedy  v.  Scott.  23  Wall.  352 
Rees  v.  Watertown,  19  Wall.  107 
Reese    River   S.    M.   Co.    v.   Atwell, 

L.  R.  7  Eq.  317 
Reeve  v.  Parkins,  2  Jac.  &  W.  390 
Reeves  v.  Vinacke,  1  McCra.  213 
Reily  v.  Lamar,  2  Cranch,  344 
Reinitz,  In  re,  39  Fed.  R.  204 
Reinstadler  v.  Rehls,  33  Fed.  R.  308 
Reissner  v.  Anness,  12  Off.  Gaz.  842  ; 

3  Bann.  &  A.  Pat.  Cas.  148        188,  189, 

202,  205 

v. ,  13  Off.  Gaz.  7  209 

Relief  F.  I.  Co.  v.  Shaw,  94  U.  S.  574       3 
Removal  Cases,  100  U.  S.  457  26,  95,  573, 

574,  580 
Remsen    v.   Rerasen,    2    Johns.    Ch. 

(N.  Y.)  495 
Renner  v.  Howland,  2  Cranch  C.  C. 

441 
Rensselaer  &  S.  R.  R.  Co.  v.  Benning- 
ton &  R.  R.  II.  Co.,  18  Fed.  R.  617 
Reubens  v.  Joel,  13  N.  Y.  488 
Reyburn  v.  Consumers'  G.  F.  &  L.  Co., 

29  Fed.  R.  561  350, 
Reynes  v.  Dumont,  130  U.  S.  354   178, 
Reynolds,  In  re,  Shelf,  on  Lun.  417 
v.  Crawfordsville  First  Nat.  Bank 

112  U.  S.  405  9,  231,  232, 

Reynoldson  v.  Perkins,  Ambl.  564 
Rlunelander  v.  Sanford,  3  Day  (Conn.) 

279 
Rhoades  v.  Selin,  4  Wash.  715      428, 

Rhode    Island    v.    Massachusetts,    12 
Pet.  657  77 

,.. 13  Pet.  23  162,  234 

v. ,  14  Pet.  210        188,  189,  204, 

20(3,  207,  209,  210,211 
Ribon  v.  Railroad  Cos.,  10  Wall.  446     99, 

100 
Ricard  v.  New  Providence,  5  Fed.  R. 

433  530 

Ricardo  v.  Garcias,  12  CI.  &  Fin.  368   199 
Rich  v.  Bray,  37  Fed.  R.  273  24 

v.  Ricketts,  7  Blatchf.  230  11 

Richards  v.  Evans,  1  Ves.  Sen.  39         114 

v.  Mackall,  124  U.  S.  183  133 

v.  Salter,  6  Johns.   Ch.   (N.  Y.) 

445  143 

Richardson  v  Boston,  1  Curt.  250  567 

v.  Golden,  3  Wash.  109  430 

v.  Richardson,  5  Paige  (N.  Y.),  58  290 

v.  Ward,  6  Madd.  260  386 

Richmond,  The,  9  Fed.  R.  863  442 

v.  Irons,  121  U.  S.  27  239 

v.  Tayleur,  1  P.  Wms.  734  526 

Rico  v.  Gualtier,  3  Atk.  501  392 

Riddle  v.  Mandeville,  6  Cranch,  86       477 


373 

425 

303 
5 

355 

191 

67 

558 


78 
429, 
431 


lxii 


TABLE    OF   CASES. 
[Kufirences  are  to  pages.] 


Riddle  v.  New  York,  L.  E.  &  W.  R.  Co., 
39  Fed.  R.  290  30,  153, 

Ridgway  v.  Wharton,  3  De  G.  M.  & 
G.  G77 

Ridout  v.  Earl  of  Plymouth,  1  Dick. 


154 

198 

382 

Rigby  v.  Rigby,  9  Beav.  311  222 

Riges  v.  Johnson  County,  6  Wall.  166   536, 

538,  539 
Rindskopf  v.  Platto,  29  Fed.  R.  130  418 
Ringo  v.  Binns,  10  Pet.  269  100 

Rio  Grande,  The,  19  Wall.  178       540,  595 
Ritchie  v.  Avlwin,  15  Ves.  79  241 

Robb  v.  Connolly,  111  U.  S.  624  545 

Robbins  v.  Freeland,  14  Int.  Rev.  Rec 

28 
Roberdeau  v.  Rous,  1  Atk.  544 
Roberts,  Ex  parte,  6  Pet.  216 

,  In  re,  24  Fed.  R.  132 

v.  Cooper,  20  How.  467 

v.  Nelson,  8  Blatchf.  74 

v.  Reilly,  116  U.  S.  80 

v.  Williams,  12  East,  33 

Robertson  v.  Carson,  19  Wall.  94 


323 
172 
535 
544 
623 
587 
545,  549 
114 
27,  84, 


85,  101,  104 

v.  Hill,  6  Fisher  Pat.  Cas.  465,  312 

Robinson,  Ex  parte,  19  Wall.  505  503,  535 

,  Ex  parte,  6  McL.  355  545 

17.  Anderson,  121  U.  S.  522  438 

v.  Campbell,  3  Wheat.  212  6 

i?.  Cathcart,  2  Cranch  C.  C.  590  152, 


r.  Hadley,  11  Beav.  614 
v.  Lord  Byron,  1  Bro.  C. 


318,  325 

378,  379 

C.  588       4, 

324 

410 


Rogers  L.  &  M.  Works  v.  Erie  Ry. 

Co.,  20  N.  J.  Eq.  379  325,  326 

Rolston  v.  Missouri  Fund  Comm'rs, 

120  U.  S.  390 
Romaine  v.  Union  Ins.  Co.,  28  Fed. 

R.  625 
Roosevelt  v.  Columbus,  C.  &I.  C.  Ry. 

Co.,  U.  S.  C.  C,  N.  D.  111.,  Nov.  15, 

1882 

Root  v.  Railway  Co.,  105  U.  S.  189    6,  7, 

14,  15 
Roscius,  The,  1  Brown's  Adm.  442  426 
Rose  v.  Calland,  5  Ves.  186  479 

v.  Gannel,  3  Atk.  439 

v.  Woodruff,  4  Johns.  Ch.  (NY.) 

547 
Rosenbach  v.  Drevfuss,  1  Fed.  R.  391 

v. ,  2  Fed.  R.  23 

Rosenbaum  v.  Bauer,  120  U.  S.  450 
v.  Council   Bluffs    Ins.   Co.,   37 

Fed.  R,  724 
Ross  v.  Prentiss,  3  How.  771  23,  590 

v. ,  4  McL.  106  520 

v.  Union  Pacific  R.  R.  Co.,   1 

Woolw.  26  300 

Rosse  v.  Rust,  4  Johns.  Ch.  (N.  Y.) 

300  445,  446 

Roundell  v.  Currer,  6  Ves.  250  257 

Roundtree  v.  McLain,  Hempst.  245 
Rourke  v.  McLaughlin,  38  Cal.  196 
Rowan  v.  Runnels,  5  How.  134 
Rowell  v.  Hill,  28  Fed.  R.  433 
Rowland,  Ex  parte,  104  U.  S.  604 


v.  Mandell,  3  Cliff .  169 

v.  National  S.  Y.  Co.,  12  Fed.  R. 

361 ;  20  Blatchf.  513  162 

v.  Norton,  10  Beav.  484  439 

v.  Philadelphia  &  R.  R.  Co.,  28 

Fed.  R.  340  413 

v.  Satterlee,  3  Sawy.  134       231,  279, 

280 

v.  Thompson,  2  Ves.  &  B.  118 

Robison  v.  Hardy,  38  Fed.  R.  49 


Robson  v.  Dodds,  L.  R.  8  Eq.  301 
Roche  v.  Morgell,  2  Sch.  &  Lef.  721 
Rochester  v.  Lee,  1  Macn.  &  G.  467 

v.  ,  2  De  G.  M.  &  G.  427 

Rock  &  Rye  Case,  82  N.  Y.  630 
Roddam  v.  Hetherington,  5  Ves.  91 


180 
577, 
578 
299 
188 
435 
453 
318 
392, 
394 


74 
162 


464 


415 

167 
530 
530 
537 

28 


Rowlatt  v.  Cattell,  2  Hare,  186 
Rowley  v.  Eccles,  1  Sim.  &  S.  511 


469 
444 
584 
542, 
544 
283 
113, 


Rodgers  v.  Rodgers,  1  Paige  (N.  Y.), 

424  244 

Roemer  v.  Bernheim,  132  U.  S.  103     517 

v.  Newman.  19  Fed.  R.  98  196 

v.  Simon,  95  U.  S.  214  213 

Rogers  v.  Goore,  17  Ves.  130  232 

— -  v.  Oxford,  W.  &  W.  Ry.  Co.,  2 
De  G.  &  J.  662  299 

v.  Reissner,  31  Fed.  P.  592    247,  254 

v. ,  34  Fed.  R.  270  514 

v.    Vosburgh,     4    Johns.     Ch. 

(N.  Y.)  84  328,  440 


176,  186 

Rowth  v.  Howell,  3  Ves.  565  372 

Roy  v.  Louisville,  N.  O.  &  T.  R.  Co., 

34  Fed.  R.  276  288 

Royal  Exchange  Ins.  Co.  v.  Ward,  1 

Fowler's  Exch.  Pr.  225  157 

Roy  all,  Ex  parte,  117  U.  S.  254  546 

Royle  v.  Wynne,  1  Craig  &  Ph.  252  194 
Rubber  Co.  v.  Goodyear,  6  Wall.  153    602 

„. ,  9  Wall.  788  14,  190,  191 

„. 9  Wall.  807      156,  249,  250, 

252,  253 
Rubel  v.  Beaver  I'alls  Cutlery  Co.,  22 

Fed.  R.  282  530 

Rucker  v.  Wheeler,  127  U.  S.  85  556 

Rudge  v.  Hopkins,  2  Eq.  Cas.  Abr.  170  121 
Ruggles  v.  Bucknor,  1  Paine,  358         426 

v.  Eddy,  11  Blatchf.  524  244 

Rugheimer,  In  re,  36  Fed.  R.  369  565 

,  In  re,  36  Fed.  R.  376  565 

Rumblv  v.  Stainton,  24  Ala.  712  435 

Rumbold  v.  Forteath,  2  Jur.  n.  s.  686  206 
Rumford  Chemical  Works  v.  Hecker, 

5  Off.  Gaz.  644  305 

v. ,  11  Off.  Gaz  330  340 

v.  Vice,  14  Blatchf.  179  197,  315 

Rumsey  v.  Call,  28  Fed.  R.  769  590 

Rundell  v.  Murray,  Jacob,  311  314 

Russell,  Ex  parte,  13  Wall.  064  616 


TABLE    OF   CASES. 
[References  are   to  pages.] 


lxiii 


Russell  v.  Ashley,  Hempst.  546  532 

v.  Clark,  7  Cranch,  69  17,  101 

v.  Farley,  105  U.  S.  433     9,  339,  310 

v.  Kearney,  27  Ga.  96  405 

v.  McLellan,  3  Woodb.&M.  157  427 

v.  Sharpe,  1  Jac.  &  W.  482         65,  78 

v.  Stansell,  105  U.  S.  303  596 

Ryan  v.  Gould,  32  Fed.  R.  754  482 

— "—  v.  Mackmath,  3  Bro.  C.  C.  15  4 

Ryekman  v.  Parkins,  5  Paige  (N.  Y.), 

543  373 

Rylands  v.  Latouche,  2  Bligh,  566     103, 

237,  267 


s. 


S.  C.  Tryon,  The,  105  U.  S.  267  616 

Sadler  v.  Hoover,  7  How.  646  597 

Sadlier  v.  Fallon,  2  Curt.  579  549 

Sage  v.  Central  R.  R.  Co.,  93  U.  S. 

412  606 
v.  Memphis  &  L.  R.  R.  R.  Co., 

125  U.  S.  361  344,  345,  387 

v. ,  18  Fed.  R.  571  387 

v.  Railroad  Co.,  96  U.  S.  712    603, 

605 

v.  Tauszky,  6  Cent.  L.  J.  7     424,  425 

Saldgard  v.  Kennedy,  2  Fed.  R.  205  11 
St.  Clair  v.  Cox,  106  U.  S.  350    153,  154, 

199 
St.  Helen's  Smelting  Co.  v.  Tipping, 

11  H.  L.  C.  642  308 

St.  John  v.  Denison,  9  How.  (N.  Y.) 

343  369 

St.  Louis  r.  Knapp  Co.,  104  U.  S.658  172, 

308,  322 
St.  Louis,  A.  &  T.  H.  R.  R.  Co.   v. 

Cleveland,  C.  C.  &  I.  Ry.  Co.,  125 

U.  S.  658  319 

St.   Louis,  I.  M.  &  S.  R.  R.  Co.  v. 

Southern  Exp.  Co.,  108  U.  S.  24       467 

v.  Vickers,  122  U.  S.  360        555,  556 

St.   Louis,   K.  C.  &  C.   Ry.    Co.   v. 

Dewees,  23  Fed.  R.  519  359 

v. ,  23  Fed.  R.  691     284,  310,  378 

St.  Louis  &  S.  F.  R.  R.  Co.  v.  Wilson, 

114  U.  S.  60  571 

St.  Louis,  V.  &  T.  H.  R   Co.  v.  Terre 

Haute  &  I.  R.  Co.,  33  Fed.  R.  385      30, 

153 

v. ,  33  Fed.  R.  440  118 

St.   Luke's    Hospital    v.    Barclay,   3 

Blatchf.  259  5 

St.  Mary  Magdalen  College  v.  Sib- 
thorp,  1  Rubb.  154  234,  239 
St.  Paul  Plow  Works  v.  Starling,  127 

U.  S.  376  25 

St.  Paul  &  C.  R.  R.  Co.  v.  McLean, 

108  U.  S.  212  584,  587 

St.  Paul's  v.  Kettle,  2  Ves.  &  B.  1  448 
Salamander  Co.  v.  Haven,  3  Dill.  131  213 
Sale  v.  Sale,  1  Beav.  586  65,  6Q 

Salkeld  v.  Science,  2  Ves.  Sen.  107     179, 

207 


Salomon  v.  Stalman,  4  Beav.  243  283 

fialtus  v.  Tobias,  7  Johns.  Ch.  (N.  Y.) 

214  188 

Salvidge  v.  Hyde,  5  Madd.  138  122 

Sahvay  v.  Salway,  4  Russ.  60  372 

v. ,  2  Russ.  &  M.  215  372 

Sampeyreac  v.  United  States,  7  Pet. 

222  521 

Sampson  v.  Johnson,  2  Cranch  C.  C. 

107  553 

Samuel,  The,  1  Wheat.  9  425 

v.  Jones,  2  Hare,  246  496 

Sanders  v.  King,  6  Madd.  61  208 

Sandford  v.  Sinclair,  8  Paige  (X.  Y.), 

373  378 

Sandilands  v.  Lines,  3  Sim.  2G3  68 

Sands  v.  Smith,  1  Dill.  290  579 

Sanxter  v.  Foster,  Cr.  &  Ph.  302  309 

Sapphire,  The,  11  Wall.  VA  261,  270 

Sargant  v.  Read,  L.  R.  1  Ch.  D.  600  379 
Sargent  v.  Larned,  2  Curt.  340  218 

Sargent  Manuf.  Co.  v.  Woodruff,  5 

Biss.  444  312 

Saull  v.  Browne,  L.  R.  10  Ch.  64  304 

Saumarez  v.  Saumarez,  4  M.  &  C.  331    83. 

84,  121 
Saunders  v.  Gould,  4  Pet.  392  597 

■  v.  Smith,  3  M.  &  Cr.  711  314 

Savage   v.  Carroll,  1  Ball  &  B.  548     78, 

396,  448 

v.  Carter,  9  Dana  (Ky.),  409         251 

Savannah  Nat.  Bank  v.  llaskins,  101 

Mass.  370  3 

Savin,  Petitioner,  131  U.  S.  267  503,  503 
Sawyer,  In  re,  124  U.  S.  200         17,  304, 

542  544 

v.  Gill,  3  Woodb.  &  M.  97  '  156 

v.  Oakman,  11  Blatchf.  65  567 

Saxby  v.  Easterbrook,  L.  R.  3  C.  P. 

D.  339  323 

Sayle  v.  Graham,  5  Sim.  8  275 

Sayles  v.  Dubuque  &  S.  C.  Ry.  Co., 

9  Fed.  R.  516  10,  11 
i'.  Erie  Ry.  Co.,   2  N.  J.  L.  J. 

212  232 
v.  Lake  Shore  &  M.  S.  Ry.  Co., 

9  Fed.  R.  515  10 
v.  Northwestern  Ins.  Co.,  2  Curt. 

212  161,  162,  586 
v.  Oregon  Central   Ry.   Co.,   6 

Sawy.  31  11 

Saylors  v.  Saylors,  3  Heisk.  (Tenn.) 

525  291 

Scaldewell  v.   Stormesworth,   1  Cal. 

Ch.  5  148 

Scarborough  v.  Pargoud,   108  U.  S. 

567  002 

Scatterwood  v.  Edge,  1  Salk.  229  307 

Scharff  v.  Levy,  112  U.  S.  711  579 

Scheile  v.  Brakell,  11  W.  R.  796  297,  318 
Schell  v.  Cochran,  107  U.  S.  625  664 

Schermehorn  v.  L'Espenasse,  2  Dull, 

360  305,  327,  330,  ".:'.2,  338 

Schnadig  v.  Flescher,  29  Fed.  R.  465  579 
Schneider  v.  Lizardi,  9  Beav.  461  338 


lxiv 


TABLE   OF   CASES. 
[References  are  to  pages.] 


Schollenberger,  Ex  parte,  96  U.   S. 

369  154,  534,  537 

School   District  of  Ackley  v.  Hall, 

106  U.  S.  4^8  610,  616 

Schreiber  v.   Sharpless,  17  Fed.   R. 

589 

v. ,  110  U.  S.  76 

Schulenberg,  Ex  parted  Fed.  R.  211 
Schwab,  Ex  parte,  98  U.  S.  240 
Schwabacker  v.  Reilly,  2  Dill.  127 


Schwarz,  In  re,  14  Fed.  R.  787 


11 
554 
160 
535 
412 
532 

303,  305, 
338 
596 
558 
332 

297,  343 
478 


381 


290 

408 
344 


Schwed  v.  Smith,  106  U.  S.  188 
Scipio  v.  Wright,  101  U.  S.  665 
Scotson  v.  Gaury,  1  Hare,  99 
Scott  v.  Becher,  4  Price,  346 

v.  Dunbar,  1  Moll.  442 

v.  Platel,  2  Phill.  229 

Scottish  Amer.   Mortgage  Co.  v.  Fol- 

lansbee,  14  Fed.  R.  125 
Scratchmer  v.  Foulkard,  1  Eq.  Cas. 

Abr.  125 
Sea   Ins.   Co.   v.    Stebbins,  8    Paige 

(N.   Y.),  565 
Seaman,  Re,  Shelf,  on  Lun.  146 
Searles  v.  Jacksonville,  P.  &  M.  R.  R. 

Co.,  2  Woods,  621        290,  293,  330,  378 
Seaver  v.  Bigelows,  5  Wall.  208  596 

Seavey  v.  Seymour,  3  Cliff.  439    547,  548 
Secombe,  Ex  parte,  19  How.  9  535 

v.  Campbell,  18  Blatchf.  108         200 

Secor  v.  Singleton,  9  Fed.  R.  809  ;  3 

McCra.  230  183,  205 
v.  Toledo,  P.  &  W.  R.  R.  Co.,  7 

Biss.  513 
Secretary   v.   McGarrahan,   9    Wall. 

298 
Sedgwick     v.     Cleveland,     7    Paige 

(N.  Y.),  290 

v.  Place,  3  N.  B.  R.  35 

Segee  v.  Thomas,  3  Blatchf.  11 


371 


539 


276 
343 
140,  156, 
162 
Seibert  C.  O.  C.  Co.  v.  Manning,  32 

Fed.  R.  625  25 

Reitz  v.  Mitchell,  94  U.  S.  580  218,  396 
Sellers  v.  Corwin,  5  Ohio,  398  560 

v.  Dawson,  2  Dick.  738  439 

Sellon  v.  Lewen,  3  P.  Wms.  239  225 

Senhouse  v.  Earl,  2  Ves.  Sen.  450  472 
Sere  v.  Pitot,  6  Cranch,  332  33,  34 

Sergeant  v.  Biddle,  4  Wheat.  508  431 

Serle  v.  St.  Eloy,  2  P.  Wms.  386  234 

Sessions  v.  Romadka.  21  Fed.  R.  124  470 
Seymour  v.  Freer,  5  Wall.  822  604 

„. ,  8  Wall.  202  102,  107 

v.  Hazard,  1  Johns.  Ch.  (N.  Y.) 

1  389, 390 
v.  Phillips  &  C.  Constr.  Co.,  7 

Biss.  460  28 

Shaft   v.  Phoenix  Mut.  L.  I.  Co.,  67 

N.  Y.  544  279 
Shaftoe  v.  Shaftoe,  7  Ves.  171  390 
Shainwald  v.  Lewis,  6  Fed.  R.  766  328 
o. ,  8  Fed.  R.  878             373,  380 


Shales  v.  Barrington,  1  P.  Wms.  481     479 
Shampeau  v.  Connecticut  River  Lum- 
ber Co.,  37  Fed.  R.  771  530 
Shankwiker  v.  Reading,  4  McL.  240     426 
Sharon  v.  Hill,  20  Fed.  R.  1  13 

v. ,  22  Fed.  R.  28     194,  205,  209 

v. ,  23  Fed.  R.  353  113 

v. ,  24  Fed.  R.  726  503 

v.  Terry,  36  Fed.  R.  337     12,  24,  175, 

264,  265,  266,  303 
Sharp  v.  Ashton,  3  Ves.  &  B.  144         338 

v.  Carter,  3  P.  Wms.  375  510 

v.  Reissner,  20  Blatchf.  10  205 

Shaver  v.  Hardin,  30  Fed.  R.  801  571 

Shaw  v.  Bill,  95  U.  S.  10  273,  274 

v.  Coster,  8  Paige  (N.  Y.),  339      143 

v.  Eailroad  Co.,  100  U.  S.  605        87, 

366 

v.  Rhodes,  2  Russ.  539  373 

Shaw  Stocking  Co.  v.  Mack,  12  Fed. 

R.  707  301,  317 

Shedd  v.  Fuller,  36  Fed.  R.  609    574,  575 
Sheffield  v.  Duchess  of  Buckingham, 

1  West,  682  471 

Sheffield  Canal  Co.  v.  Sheffield  &  R. 

Ry.  Co.,  1  Phill.  484  518 

Sheffield  Water  Works  v.  Yeomars, 

L.  R.  2  Ch.  8  92,  301 

Sheldon    v.    Fortescue   Aland,   3  P. 
Wins.  104  526 

v.  Gill,  8  How.  441  33 

v.  Keokuk  N.  L.  Packet  Co.,  8 

Fed.  R.  769  127,  171 

Sheldrick  v.  Cockcroft,  27  Fed.  R.  579    574 

Shelton  v.  Tiffin,  6  How.  163  27 

Shepherd  v.  Commissioners  of  Ross 

County,  7  Ohio,  271  512 

v.  Morris,  4  Beav.  252  117 

Sheppard  v.  Akers.  1  Tenn.  Ch.  326     225 
Sheriff  v.  Sparks,  West,  130  472 

Sherman,  In  re,  124  U.  S.  364  534 

v.  Nutt,  35  Fed.  R.  149  322 

Sheward  v.   Sheward,  2   Ves.    &   B. 

116  416 

Shickle  v.  South  St.  Louis  Foundry 

Co  ,  22  Fed.  R.  105  125,130 

Shields  v.  Barrow,  17  How.  130        17,  93, 

94,  99,  118,  137,  238,  251,  290 

o.  McClung,  6  W.  Va.  79  335 

v.  Thomas,  17  How.  3  24,  596 

v. ,  18  How.  253       13,  120,  121, 

162 
Shipbrooke  (Lord)  v.  Lord  Hinchin- 

brook,  13  Ves.  387  287 

Shirley  v.  Earl  Ferrers,  3  P.  Wms. 

77  415 

Shoecraft  v.  Bloxham,  124  U.  S.  730      33 
Shoemaker  v.  National  Mech.  Bank, 

1  Husrhes,  101  336 

Short  v.  Chicago,  M.  &,  St.  P.  Ry.  Co., 
33  Fed.  R.  1 14  30,  153,  577,  578 

„. 1  34  Fed.  R,  225  577,  578 

Shutte  v.  Thompson,  15  Wall.  151        427 
Shuttleworth    v.    Lavcock,    1    Vern. 
245  175 


TABLE    OF   CASES. 
[References  are  to  pages.] 


lxv 


SibbalJ   v.   United    States,    12    Pet. 

488  622 

Sichel  v.  Raphael,  4  L.  T.  N.  s.  114  394 
Sickels  v.  Borden,  4  Blatchf.  14     334,  335 

v.  Mitchell,  3  Blatchf.  548 

Sidney  v.  Perry,  2  Dick.  602 
Siebold,  Ex  parte,  100  U.  S.  371 
Sieveking  v.  Behrens,  2  M.  &  Cr.  581 
Sigel  v.  Plielps,  7  Sim.  23!) 
Silsby  v.  Foote,  14  How.  218 

v. ,  20  How.  290 

Silver  v.  Bishop  of  Norwich,  3  Swanst 

112 
Simms  v.  Guthrie,  9  Crunch,  19 
Simpson,  Er  parte,  15  Ves.  476 
v.  Fogo,  1  J.  &  II.   18 ;   G  Jur. 

n.  s.  949 

v.  Sadd,  16  C.  B.  26 

Sims  v.  Hundley,  6  How.  1 
Sinclair  v.  James,  1  Dick.  277 
Singer  Co.  v.   Union  Co.,  1  Holmes, 

253 
Singleton    ».    Singleton,    8    B.    Mon. 

(Ky.)  310 

Siren,  The,  7  Wall.  152  68,  69,  73 

Sizer  v.  Many,  16  How.  98  623 

Skeffington  v. ,  4  Ves.  06         151,  241 

Skerrett's  Minors,  2  Hogan,  192  374 

Skiddy  v.  Atlantic,  M.  &  O.  R.  R.  Co., 

3  Hughes,  320  350,  366 

Skip  v.  Harwood,  3  Atk.  504 
Skrine  v,  Powell,  15  Sim.  81 :  9  Jur 

1054 

Slack  v.  Walcott,  3  Mason,  508  266,  267 
Slaughter-House  Cases,  10  Wall.  273  303 
Sle^singer  v.  Buckingham,  17  Fed.  R. 

454  218,  321 

Slingsby  v.  Hale,  1  Ch.  Cas.  122  519 

Sloane  v.  Anderson,  117  U.  S.  275         571 
SIoo  v.  Law,  3  Blatchf.  459 
Small  v.  Attwood,  1  Younge,  407 

v.  Montgomery,  17  Fed.  li.  865 

Smart  v.  Flood,  49  L.  T.  n.  s.  467 
Smith,  Ex  parte,  1  Atk.  139 

v.  Babcock,  3  Sumner,  583     228,  213 

v.  Black,  115  U.  S.  308  461 

v.  Bryon,  3  Madd.  428  179 

p.  Burnham,  2  Sumn.  012      117,  397 

v.  Chicago  &  N.  W.  Ry.  Co.,  38 

Fed.  R.  321  492 

v.  Clarke,  2  Dick.  455  331 

v.  Coleman,  2  Cranch  C.  C.  237     426 

v.  Craft,  123  U   S.  430  597 

v.  Cummings,  1  Fisher  Pat.  Cas. 

152  312,  332 

v.  Day,  L.  R.  13  Ch.  D.  651  340 

v.  Earl  Brownlow,  L.  R.  9  Eq. 

241  91,  121 

i'.  East  India  Co.,  1  Phill.  50         177 

t7.  Ely,  15  How.  137 

i;.  Green,  37  Fed.  R.  424 

17.  Greenhow,  109  U.  S.  669 

17.  Jackson,  1  Paine,  453 

17.  Johnson,  4  Blatchf.  252 

v.  Kernochen,  7  How.  198 


322 
205 
542,  543 
144 
65 
556 
602 

356 

95,  98 
116 

171 
440 
411 
257 

319 

526 


505 
416 


297 

90 

161 

383 

408 


598 
83 
23 

536 

315 


Smith  17.  Marshall,  2  Atk.  70  152 

v.  MeCullough,  104  U.  S.  25         359, 

360,  363,  366,  367 


—  v.  Potter,  3  Wis  432 

—  17.  Railroad  Co.,  99  U.  S.  398       8 

—  v.  St.   Louis  Mut.  L.  I.  Co.,   2 
Tenn.  Ch.  599 

—  v.  Schwed,  6  Fed.  R.  455       304, 

—  v.  Searle,  14  Ves.  415 

—  p.  Smith,  L.  R.  20  Eq.  500 

—  17.  Standard  L.  M.  Co.,  19  Fed.  R. 
825 


395 

,  18 

219 
332 

224 
325 

25 
90 


17.  Swormstedt,  16  How.  288 

i;.  Vaughan,  Ridg.  t.  Hardw.251  386 

17.  Whitney,  116  U.  S.  167     532,  533, 

596 

17.  Woolfolk,  115  U.  S.  143   238,  247, 

288 
Snavely  i\  Harkrader,  29  Gratt.  (Va.) 

112  126 

Snead  v.  McCoull,  12  How.  407     237,  244 


Snell  17.  Hyat,  1  Dick.  287 

v.  Insurance  Co  ,  98  U.  S.  85 

Snow,  In  re,  120  U.  S.  274 
v.  United  States,  118  U.  S 


346 


79 

3 

544 

570, 

593 

16 
405 
119 
136 

86 


Snyder  v.  Marks,  109  U.  S.  189 

».  Wise,  10  Pa.  St.  157 

Socola  v.  Grant,  15  Fed.  R.  487 
Soden  v.  Soden,  13  Ves.  118 
Solder  v.  Williams,  1  Curt.  479 
Somerset  (Duke  of)  v.  Cookson,  3  P. 

Wins.  389;  1  Lea.  Cas.  in  Eq.  821      17, 

319,  325 
Sommerville    v.    French,    1     Cranch 

C.  C.  474  507,  508 
Sonstiby  v.  Keeley,  7  Fed.R.  417  444 
Soule  17.  Chase,  1  Rob.  (N.  Y.)  222  408 
v.   Corning,    11   Paige    (N.  Y. ) 

412  439 

Southard  17.  Russell,  16  How.  547  520,  521 
Southern   Express  Co.   v.  St.  Louis, 

I.  M.  &  S.  Ry.  Co.,  10  Fed.  R.  210 

325,  341,  470 

v. ,  10  Fed.  R.  869  325,  341 

Southern   Pacific  R.  R.   Co.  r.  Cali- 
fornia, 118  U.  S.  109  25 
Southey  i?.  Sherwood,  2  Meriv.  435     297, 

316 
South    Ottawa  v.   Perkins,  94  U.  S. 

260  443,  558 

Southworth  v.  Reid,  36  Fed.  R.  451     577, 

578 
Spaeth  17.  Barnev,  22  Fed.  R.  828  129,  130 
Spa  (ford  ».  Goodell,  3  McL.  97  509 

Spain  (King  of)  17.  Machado,  4  Russ. 

225  106 

Spalding  17.  Keely,  7  Sim.  377  332 

17.  Manasse,  131  U.  S.  65  555 

i7.  People,  2  How.  66  604 

Sparhawk  ».  Union  Pac.  R.  R.  Co.,  54 

Pa.  St.  401  321 

Sparkman  o.  Higgins,  1  Blatchf.  205    337 
Spaulding  w.  Tucker,  2  Sawv.  50        481, 

491,  195 


Ixvi 


TABLE   OF   CASES. 
[References   are  to   pages.] 


Spearing  v.  Lynn,  2  Vern.  376  510 

Speigle  v.  Meredith,  4  Biss.  120  16 

Sperry  v.  Erie  liy.  Co.,  6  Blatchf.  425   191, 

212 
Spies  v.  Illinois,  123  U.  S.  131      294,  613, 

614 
Spill  v.  Celluloid  Manuf.  Co.,  28  Fed. 
R.  870  483,  493 


Spink  v.  Francis,  19  Fed.  R.  670 

i'.  ,  20  Fed.  11.  567 

Spooner  v.  McConnell,  1  McL 


308, 


304 
304 

16, 
321 
31(5 

86 


514 

143 

587 
452 

407 


Spottiswoode  v.  Clarke,  2  Pliill.  154 
Spragg  v.  Binkes,  5  Ves.  587 
Sprague   v.   Jones,  9  Paige  (N.  Y.), 

395 
Spring  v,  South  Carolina  Ins.  Co.,  8 

Wheat.  268 
Spring  Co.  v.  Knowlton,  103  U.  S.  49 
Stace  v.  Mabbot,  2  Ves  Sen  552 
Stacy  v.  Farnhain,  2  How  Fr.  (N,  Y  ) 

26 
Stafford  v.  Brown,  4  Faige   (N  Y.), 

360  293,  407,  506 

v.  Bryan,  2  Paige  (N.  Y.),  45        522 

v.  Howlett,  1  Paige  (N.  Y.),  200    274 

v.  Union  Bank,  16  How.  135   535, 606 

v. ,  17  How.  275  606 

Staines  v.  Morris,  1  Ves.  &  B.  8  477 

Stallings  v.  Goodloe,  3  Murph.  (N.  C.) 

159 
Stanbrough  v   Cook,  38  Fed.  R.  369 
Standen  v.  Edwards,  1  Ves.  Jr.  133 
Stanley  v.  Robinson,  1  Russ.   &  M. 

527 
Stanton  v.  Alabama  &  C.  R.  R.  Co.,  2 

Woods,  506  343,  365,  367,  462 

v. ,  31  Fed.  R.  585  367 

v.  Enibrev,  93  U.  S.  548  194 

Stapilton  v.  Stapilton,  1  Atk.  2  137 

Stapleton  v.  Foreign  Vineyard  Assoc, 

12  W.  R.  976 
Stapvlton  v.  Scott,  13  Ves.  425  139,  247 
Starin  v.  New  York,  115  U.  S.  248  25,  571 
Starr  v.  Stark,  1  Sawy.  270  199 

Starten  v.  Bartholomew,  6  Beav.  143     65 
State  Railroad  Tax  Cases,  92  U.  S. 

575  16,  139,  140,  339 

State  Savings  Assoc,  v.  Howard,  31 

Fed.  R.  433  27 

Stead's  Ex'rs  v.  Course,  4  Cranch, 

403  206,  209,  210 

Steam  Gauge  &  L.  Co.  v.  McRoberts, 

26  Fed.  R.  765  115,  129 

Steamship  Co.  v.  Tugman,  106  U.  S. 

118  26,  113,  573 
Stearns  v.  Page,  1  Storv,  204  197,  207 
Stebbins  v.  St.  Anne,  116  U.  S.  386  119 
Steel  v.  Smelting  Co.,  106  U.  S.  447  18 
Steever  v.  Rickman,  109  U.  S.  74  484 
Sterner  v.  Blake,  36  Fed.  R.  183  424 
Steiger  v.  Bonn,  4  Fed.  R.  17  160,  412 
v.  Heidelberger,  4  Fed.  R.  455 ; 

18  Blatohf.  426  194 

Stephen  v.  Beall,  22  Wall.  324  97 


522 
568 
452 

212 


297 


Stephen  v.  Cini,  4  Ves.  359  157 

Stephens  v.  Monongahela  Bank,  111 

U.  S.  197  591 

Stephenson  v.  Wilson,  2  Vern.  325  3 

Stevens    v.    Cooper,    1    Johns.    Ch. 

(N.  Y.)  425  397,413 

v.  Davison,  18  Gratt.  (Va.)  819 

356,  357 

v.  Guppy,  Turn.  &  R.  178  527 

v.  Nichols,  130  U.  S.  230  573 

v.  Railroads,  4  Fed.  R.  97       434,  435 

v.   Richardson,  20  Blatchf.    53 ; 

9  Fed.  R.  191  574 

Stevenson  v.  Anderson,  2  Ves.  &  B. 

407  144,  145.  156 

v.  Magowan,  31  Fed.  R.  824         214 

Stewart  v.  Chesapeake  &  O.   Canal 

Co.,  1  Fed.  R.  361  95,  136 

v. ,  5  Fed.  R.  149  446,  497 

v.  Drasha,  4  McL.  563     136,  140,  177 

v.  Dunham,  115  U.  S.  61   27,89,290, 

587,  596 

v.  Graham,  19  Ves.  313  390 

v.  Inglise,  9  Wheat.  526  540 

v.  The  Sun,  36  Fed.  R.  307  499 

Stimpson  v.  Brooks,  3  Blatchf.  456       483 

v.  Rogers,  4  Blatchf.  333  84 

■ v.  Westchester  It.  R.  Co.,  3  How. 

553  540 

Stockdale  v.  Onwhyn,  5  Barn.  &  C. 

173  316 

Stockton  Laundry  Case,  26  Fed.  R. 

611  543 

Stockton  &  H.  Ry.  Co.  v.  Leeds  &  T. 

Ry.  Co.,  2  Phill  666  323 

Stockwell  v.  United  States,  3  Cliff. 

284  ^    430 

Stone  v.  South  Carolina,  117  U.  S. 

430  574,  590 

p.  Wishart,  2  Madd.  64  379,  380 

Stonehouse  v.  Starislmw,  Chan.  Cal. 

XXIX.  3 

Storms   v.    Kansas  Pac.   Ry.    Co.,  5 

Dill.  486  186, 

Story,  Ex  parte,  12  Pet.  339 

v.  Derby,  4  McL.  160 

v.  Holcombe,  4  McL.  306 

v.  Livingston,  13 Pet.  359      107, 

Stovall  17.  Banks,       Wall.  583 
Strange  v.  Collins,  2  Ves.  &  B.  163 
Stranger,  The,  1  Brown's  Adm.  281 
Strauss  v.  Meyer,  22  Fed.  R.  467 


495 


Street  v.  Ferry,  119  U.  S.  385 

v.  Steman,  38  Fed.  R.  548 

v.  Street,  1  Turn.  &  It.  322 

Stribley  v.  Hawkie.  3  Atk.  275 
Stringfellow  v.  Cain,  99  U.  S.  610 

Strode  v.  Stafford  Justices,  1  Brock. 

162 
Strong  v.  Willey,  104  U.  S.  512 
Stuart  v.  Gay,  127  U.  S.  518 
v.  Laird,  1  Cranch,  299 


211 

256 
315 
317 

461, 
462 
467 
245 
410 

482, 
498 
597 
422 
390 
4 

591, 
592 

602 
191 

465 
567 


TABLE    OF   CASES. 
[References  are   to  pages.] 


lxvii 


Stubbs  v.  Sargon,  3  Beav.  408  286 

Studd  v.  Acton,  1  H.  Bl.  468  508 

Stupp,  In  re,  12  Blatclif.  501  540,  545 

Sturgess  v.  Cary,  2  Curt.  59  15 

Sturt  v.  Mellisli,  2  Atk.  610  3 

Sturz  v.  De  La  Rue,  5  Russ.  322    313,330 
Stuyvesant  Bank,  In  re,  5  Bun.  566; 

6  N.  B.  It.  272  381 

Suess  v.  Noble,  31  Fed.  It.  855  17 

Suffolk   (Earl  of)   v.  Green,   1   Atk. 

450  4,  415 

Sugden  v.  Hull,  28  Beav.  263  339 

Sullivan  v.  Portland  &  K.  It.  R.  Co., 
94  U.  S.  806  175,176 

v.  Redfield,  1  Paine,  441        129,  133, 

312,-  313,  330 

v.  Tuck,  1  Md.  Ch.  59,  319 

Sully  v.  Drennan,  113  U.  S.  287  100 

Sunnyside,  The,  5  Ben.  162  493 

Supervisors  v.  Durant,  9  Wall.  736       539 

v.  Kennicott,  103  U.  S.  554  655 

v.  Rogers,  7  Wall.  175  295,  567 

v.  United  States,  4  Wall.  435         536 

Surget  v.  Byers,  Hempst.  715  300 

Sutro  v.  Simpson,  14  Fed.  It.  370  586 

Sutton  v.  Bancroft,  23  How.  320  024 

v.  Jones,  15  Ves.  584  380 

v.  Mandeville,  1   Crancb  C.  C. 

115 
Suydam  v.  Beals,  4  McL.  12 

v.  Broadnax,  14  Pet.  67 

v.  Truesdale,  6  McL.  459 


427 
164,  221 
8 
228,  244, 
250 
359 


Swaby  v.  Dickon,  5  Sim.  629 
Swain  v.  Boylston  Ins.  Co.,  37  Fed.  R. 

766  570 

Swartwout,  Ex  parte,  4  Cranch,  75      541 


Swatzel  v.  Arnold,  Woolw.  383 
Sweeney  v.  Coffin,  1  Dill.  73 
Sweet  v.  Maugham,  11  Sim.  51 
Swift  v.  Jenks,  19  Fed.  R.  641 

v.  Tyson,  16  Pet.  1 

Swope  v.  Leffingwell,  105  U.  S.  3 


544 
240 

161,  573 
316 
333 

444,  557 
616 


Sydolph  v.  Monkston,  2  Dick.  609  226 
Syers  v.  Brighton  Brewery   Co.,   11 

L.  T.  n.  s.  560  299,  345 

Sykes  v.  Hastings,  11  Ves.  363  380 

Symonds  v.  Duchess  of  Cumberland, 

2  Cox  Eq.  411  237 

v.  Greene,  28  Fed.  R.  834  24 

Syracuse,  The,  36  Fed.  It.  830  491 

Szywanski's  Heirs  v.  Zunts,  20  Fed. 

R.  361  326 


T. 

Tainter  v.  Clark,  5  Allen  (Mass.),  66 

442 
Talbot  v.  McGee,  4  Monr.  (Ky.)  375 

247,  252 

v.  Scott,  4  Kay  &  J.  96  343 

Talmage  v.  Pell,  9  Paige  (N.  Y.),  410 

228,  250 


Talmage  v.  Pell,  7  N.  Y.  328 
Taner  v.  Ivie,  2  Ves.  Sen.  466 
Tanfield  v.  Irvine,  2  Russ.  149 
Tappan  v.  Smith,  5  Biss.  73 
Tappen  v.  Norman,  11  Ves.  563 
Tarble's  Case,  13  Wall.  397 
Tarleton  v.  Barnes,  2  Keen,  632 


370 

66,  480 

377 

276 

66 

544 

193, 

204,  209 

Tasker  v.  Small,  3  M.  &  C.  03  84 

Tatham  v.  Wright,  2  Russ.  &  M.  1        452 
Tayloe  v.  Merchants'  F.  I.  Co.,  9  How. 

390  2,  13,  136,  318 

Taylor,  Ex  parte,  14  How.  3  535,  5o7 

v.  Barclay,  2  Sim.  213  172,  442 

v.  Carry  1,  20  How.  583  11 

v.  Davis,  110  U.  S.  330  374 

v.  Holmes,  14  Fed.  It.  493         26,  65, 

80,  95,  175,  176,  179,  180,  181,  182,  186 
v.  Life  Assoc,  of  Amer.,  3  F'ed.  R. 

465  381,  382 

v.  Luther,  2  Sumner,  228       220,  3sJ6 

v.  Oldham,  Jacob,  527  380 

v.  Person,  2  Hawks  (N.  C),  298    522 

v.  Philadelphia  &  It.  It.  It.  Co.,  7 

Fed.  R.  377  350,  366,  369,  379 

v. ,  9  Fed.  R.  1  366,  379 

v.  Philips,  2  Ves.  Sen.  23  471 

v.  Robertson,  27  Fed.  R.  537         463 

v.  Salmon,  4  Myl.  &  C.  134  89 

v.  Shew,  54  N.  Y.  75  574 

v.  United  States,  3  How.  197         406 

v.  Wrench,  9  Ves.  315  237 

Taylor  County   Court   v.   Baltimore 

&  O.  R.  It.  Co.,  35  Fed.  It.  161  570 

Taylour  v.  Rochford,  2  Ves.  Sen.  281     83 
Tazewell  County  v.  Farmers'  L.  &  T. 

Co.,  12  Fed.  R.  752  20,  128 

Teese  v.  Huntingdon,  23  How.  2 
Tempest  v.  Ord,  2  Meriv.  55 
Tennessee  v.  Davis,  100  U.  S.  257 


Co.  v.  Wal- 


213 
359 
25, 
569 


575 
511 


Tennessee  C.  L.  &  T.  B 

ler,  37  Fed.  R.  545 

Terrell  v.  Allison,  21  Wall.  289 

Terry,  Ex  parte,  128  U.  S.  289      503,  505, 

507,  542,  544 

In  re,  36  Fed.  R.  419  503,  505 

v.  Little,  101  U.  S  ,  216  8,  98 

v.  Me  Lure,  103  U.  S.,  442     245,  445 

v.  Tubman,  92  U.  S.  156  98 

Texas  v.  Chiles,  21  Wall.  488  410 

Texas  Express  Co.  ?•.  Texas  &  P.  Ry. 

Co.,  6  Fed.  It.  426  325 

Texas  &  St.  L.  Ry.  Co.  v.  Rust,  17 

Fed.  It,  275  20,  386,  387 
Thackrah  v.  Haas,  119  U.  S.  499  13 
Thayer  v.  Life  Assoc,  112  U.  S.  717  99 
v.    Wales,    9   Blatclif.     170;    5 

Fisher  Pat.  Tas.  130  312 

v. ,  5  Fisher  Pat.  Cas.  448      151, 

162 
Theberath  v.  Rubber  &  C.  H.  T.  Co., 

5  Bann.  &  A.  Pat.  Cas.  584  210,  232 
Third  Ave.  Sav.  Bank  v.  Dimock,  24 

N.  J.  Eq.  26  244 


lxviii 


TABLE    OF   CASES. 


[References  are   to  pages.] 


Thomas,  In  re,  3  N.  B.  K.  7 

,  In  re,  35  Fed.  R.  337  457, 

,  In  re,  35  Fed.  R.  822 

v.  Brigstocke,  4  Lluss.  64 

v.  Brownville,  F.  K.  &  P.  R.  R. 

Co.,  109  U.  S.  522 
v.  Chicago  &  C.  S.  Ry.  Co.,  37 

Fed.  R.  548 

i?.  Dawkin,  1  Ves.  Jr.  452 

v.  Harvie's  Heirs,  10  Wheat.  146 

v.  Lloyd,  25  Beav.  620 

v.  Peoria    &    K.  I.  Ry.  Co.,  36 

Fed.  R.  808 

v.  Wooldridge,  23  Wall.  283 

Thompson  v.  Allen  County,  115  U.  S. 

550  7,  15,  16, 
v.  Brown,  4  Johns.  Ch.  (N.  Y.) 

619 

v.  Butler,  95  U.  S.  094 

v.  Geary,  5  Beav.  131 

v.  Goulding,  5  Allen  (Mass.),  81 

v.  Maxwell,  95  U.  S.  391  519,  522, 

v.  Perrine,  103  U.  S.  806 

v.  Railroad  Cos.,  6  Wall.  134 


338 
461 
4  27 
387 

87 


—  v.  Scott,  4  Dill.  508  68 

—  v.  Smith,  2  Bond,  320  398 

—  v. ,  1  Dill.  458 

—  v.  Thompson,  1  Turn.  &  V.  Ch. 
Pr.  513 

—  v. ,  7  Beav.  350 

—  v.  Took,  1  Dick.  115 

—  v.  United  States,  103  U.  S.  480 

v.  Williams,  1  Jones  Eq.  (N.  C.) 


176 
Thomson  v.  Dean,  7  Wall.  342 
v.  East  Tenn.  &  G.  Ry.  Co.,  38 

Fed.  R.  673 

v.  Eastwood,  L.  R.  2  App.  Cas. 

215 

v.  Lee  Countv,  3  Wall.  327 

v.  Wooster,  114  U.  S.  104     165, 

168,  199, 
Thorley's  C  F.  Co.  v.  Massam,  L.  R. 

6  Ch.  D.  582 
Thornbursdi   v.  Savage   Min.  Co.,  1 

Pacific  L.  M.  267  153, 

Thorne  v.  Towanda  Tanning  Co.,  15 

F'ed.  R.  289  193, 

Thornhill  v.  Thornhill,  14  Sim.  600 
Thoroton  v.  Blackborne,  2  W.  Kel.  7 
Thorp  v.  Orr,  2  Cranch  C.  C.  335 
Thorpe  v.  Macauley,  5  Madd.  218 

v.  Simmons,  2  ('ranch  C.  C.  195 

Thring  v.  Edgar,  2  Sim.  &  S.  274 
Thruston  v.  Mustin,  3  Cranch  C.  C. 

335 
Tifft    v.   Iron   Clad   Manuf.   Co.,   16 

Blatchf.  48 
Tilden  v.  Blair,  21  Wall.  241 
Tilford  v.  Oaklev,  Hempst.  197 
Tilghman  v.  Proctor.  125  U.  S.  136 
Tinsley  v.  Lacy,  1  Hem.  &  M.  747 


379 
520, 
521 
475 

351 
467 

357 

328 
595 
336 
514 

,523 
444 

5,8, 
438 
371 

,458 
511 

289 
434 

257 
538, 
539 

310 
467 

579 

119 

558 
167, 
601 

323 

161 

194 
379 
471 
426 

186 
421 
207 

306 

303 
557 
13 
463 
314 


Tintsman  v.  National  Bank,  100  U.  S. 

6  595 

Tioga  R.  R.  Co.  v.  Blossburg  &  C. 

R.  R.  Co.,  20  Wall.  137  558 

Tippecanoe   County  (Comm'rs  of)  v. 

Lucas,  93  U.  S.  108  614 

Tipping  v.  Eckersley,  2  Kay  &  J.  264  300 
Titterton  v.  Osborne,  1  Dick.  350  107 

Tobin  v.  Walkinshaw,  McAll.  26  99 

v.  Wilson,  3  J.  J.  Marsh.  (Ky.)  67  144 

Todd  v.  Daniel,  16  Pet.  521  598 

v.  Gee,  17  Ves.  273  174 

Toland  v.  Sprague,  12  Pet.  300  152,  162 
Tolson  v.  Lord  Fitzwilliam,  4  Madd. 

403  185 

Tumkin  v.  Lethbridge,  9  Ves  178  224 
Toinlinson  v.  Ward,  2  Conn.  396  377, 

382 
Tomlinson  &  W.  Manuf.  Co.  v.  Shatto, 

34  Fed.  R.  380  10 

Tom  Ting,  Ex  parte,  108  U.  S.  556  548 
Tonkin  v.  Lethbridge,  G.  Coop.  43       267, 

274 
Tooker  v.  Thompson,  3  McL.  92  426 

Torrent  v.  S.  K.  Martin  Lumber  Co., 

37  Fed.  R.  727  586 

Torrey  v.  Grant  Locomotive  Works, 

14  Blatchf.  269  574 

Toulmin  v.  Hamilton,  7  Ala.  362  175 

v.  Reid,  14  Beav.  499  247,  248 

Tourton  v.  Flower,  3  P.  Wms.  369       132, 

181,  182 
Towle  v.  Pierce,  12  Met.  (Mass.)  329     96, 

100,  114 
Townley  v.  Deare,  3  Beav.  213  449 

Tovvnsend  v.  Ives,  1  Wds.  216  450 

f.  Todd,  91  U.  S.  452  558 

Tracy  v.  Torrey,  2  Blatchf  275  333 

Trade  Auxiliary  Co.  v.  Vickers,  L.  R. 

16  Eq.  303     '  345 

Trade  Mark  Cases,  100  U.  S.  82  318 

Trafton  v.  Nougues,  4  Sawy.  178  573 

Transatlantic  Co.  v.  Pietroni,  Johns. 

604  343 

Transportation    Co.  v.   Parkersburg, 

107  U.  S.  691  171,  172 

Travis  v.  Waters,  1  Johns.  Ch.  (N.  Y.) 

85  258 

Treadwell  v.  Sevmour,  U.  S.  C.  C, 

S.  D.  N.  Y.,  Oct.  29,  1889,  N.  Y. 

L  J.  Oct.  30,  1889,  Lacombe,  J.  552 
Trecothick  v.  Austin,  4  Mason,  16  97 

Tredway  v.  Sanger,  107  U.  S.  323  33 

Tremaine  v.  Hitchcock,  23  Wall.  518    236, 

237,  245 
Tremolo  Patent,  The,  23  Wall.  518  237 
Trenton    Banking    Co.   v.  Rossell,    1 

Green  Ch.  (X.  J.)  492  451 

Tnvelvan  v.  Charter,  9  Beav.  140  513 
Trial,  The,  Blatchf.  &  H.  94  490 

Triebert  *;.  Burgess,  11  Md.  452  378 

Trigs  v.  Conway,  Hempst.  711  554 

Trimmer  v.  Bayne,  9  Ves.  209  4 

Triplett   v.  Bank  of  Washington,  3 

Cranch  C.  C.  646  553 


TABLE    OF   CASES. 
[References  are  to  pages.] 


lxix 


Trotter  v.  Trotter,  Jacob,  533  508 

Troy  Iron  &  Nail  Factory  v.  Corning, 

6  Blatchf.  328  216,  218,  462 

v. ,  7  Blatchf.  16  482,  494 

Troy  &  B.  R.  R.  Co.  v.  Boston,  H.  T. 

&  W.  Ry.  Co.,  86  N.  Y.  107  301,  309, 341 
Trust  &  Fire  Ins.  Co.  v.  Jenkins,  8 

Paige  (N.  Y.),  589  164,242 

Trustees  v.  Greenough,  105  U.  S.  527  88, 
290,  467,  477,  481,  496,  497,  498 
Trustees  of  Wabash  &  E.  Canal  Co. 

v.  Beers,  2  Black,  448  89,  90 

Tryon  v.  Westminster  Imp.  Comm'rs, 

6  Jur.  >-.  s.  1324  107,  187 

Tryon  (S.  C),  The,  105  U.  S.  267  616 
Tuck  v.  Olds,  29  Fed.  R.  883  482,  495,  49_8 
Tucker  v.  Carpenter,  Hempst.  440       337, 

340 
Tufts  v.  Tufts,  3  Woodb.  &  M.  429      514, 

515 
Tapper  v.  Powell,  1  Johns.  Ch.  (N.  Y.) 

439  #        138 

Turner  v.  Amer.  Bapt.  Miss'y  Union, 

5  McL.  344  120,  326 
v.  Bank  of  North  Amer.,  4  Dall.8     34, 


174 

526 
257 


■  v.  Berry,  38  111.  541 

v.  Cole,  3  Beav.  292 

v.  Indianapolis,  B.  &  W.  Ry.  Co., 

8  Biss.  315  347 
v.  Peoria  &  S.  R.  R.  Co.,  95  111. 

134  367 

v.  Robinson,  1  Sim.  &  S.  3     189,211 

„. .  l  Sim.  &  S.  313  122 

v.  Turner,  2  Stra.  708  67 

v.  Wight,  4  Beav.  40  306 

Turrell  v.  Spaeth,  9  Off.  Gaz.  1163      275, 

276 
Twitchell  v.  Commonwealth,  7  Wall. 

321  613 

Two  Sicilies  (King  of)  v.  Willcox,  1 

Sim.  n.  s.  301  178 

Tyler  v.  Bell,  2  M.  &  Cr.  89  186 

v.  Galloway,  13  Fed.  R.  477  238 

v.  Magwire,  17  Wall.  253  623 

v.   Simmons,   6   Paige  (N.  Y.), 

127  463 

Tysen  v.   Wabash  R.  R.  Co.,  8  Biss. 

247  345,  346 


u. 

Union  Bank  of  G.  v.  Geary,  5  Pet. 

99  218,  219,  396 

Union  Bank  of  La.  v.   Stafford,  12 

How.  327  95,  96, 102,  103 

Union  Mut.  Ins.  Co.  v.  Commercial 

Mut.  M.  I.  Co.,  2  Curt.  524  215,  325 
Union  Mut.  L.  I.  Co.  r.  Union  Mills 

Plaster  Co.,  37  Fed.  R.  286  377 
v.  Univ.   of  Chicago,  6  Fed.  R. 

443  11 

Union  Pacific  Ry.  Co.  v.  Cheyenne, 

113  U.  S.  516  16 


Union  Pacific  Ry.  Co.  v.  Hall,  91  U.  S. 
343  536,  537,  539 

v.  McShane,  3  Dill.  303     16, 122,  124 

v.  Mercer,  28  Fed.  R.  9  171 

Union  P.   B.  M.  Co.    v.    Newell,    11 

Blatchf.  549  337 

Union  Sugar  Refinery  v.  Mathiesson, 
2  Cliff.  304  160,  412 

v. ,  3  Cliff.  146         455,  475,  513 

Union  Trust  Co.  v.  Chicago  &  L   II. 
K.  R.  Co.,  7  Fed.  R.  513  367,375 

w.  Illinois  Midland  Hv.  Co.,  117 

U.  S.  434  344,  350,  363,  365,  367 

v.  Morrison,  125  U.  S.  591  351 

v.  Rockford,  R.  I.  &  St.  L.  R. 

R.  Co.,  6  Biss.  197  12 

v.  Souther,  107  U.  S.  591      349,  350 

v.  Walker,  107  U.  S.  590        349,353 

United  N.  J.  R.  R.  &  C.  Co.  v.  Hop- 
pock,  1  Stew.  Eq.  (N.  J.)  261  417 
United  States,  Ex  parte,  1  Gall.  338     566 

v.  Adams,  6  Wall.  101  r.i  io 

v. f  9  Wall.  661  540 

v.  Addison,  22  How.  174         535,  596 

v.   Alexander,  4   Cranch   C.  C. 

311  122 

v.  American  Bell  Telephone  Co., 

128  U.  S.  315  12,  125 

v. ,  29  Fed.  R.  17  155,  161 

v. ,  30  Fed.  R.  523  173 

„. f  32  Fed.  R.  591  12 

v.  Ames,  99  U.  S.  35  171 

v.    Armejo,    131    U.    S.,    App. 

lxxxii.  601 

v.  Atherton,  102  U.  S.  372  116 

v.  Auditors  of  Brooklyn,  8  Fed. 

R.  473  538 

v.  Bailey,  9  Pet.  267  597 

v.  Beebe,  127  U.  S.  338  10,  197 

v.  Benner,  Baldw.  234  391,  398 

v.  Black,  11  Blatchf.  538  322 

v.  Bollman,  1  Cranch  C.  C.  373  545, 

547 

v.  Boutwell,  17  Wall.  G04        74,  539 

».  Bridgman,  8  Am.  L.  Rec.  541  160 

I?.  Bullock.  6  Pet.  485,  n.  535 

v.  Buzzo,  18  Wall.  125  598 

v.  Carter,  3  Cranch  C.  C.  423        503 

v.  Chicago,  7  How.  185  597,  598 

i?.  Citv  of  New  Orleans,  17  Fed. 

R.  483  538 

v.  Clark  County,  95  U.  S.  769       53tt 

17.  Clarke,  8  Pet.  436  68 

v.  <  lolgate,  21  Fed.  R.  318  305 

(7.  Curry,  6  How.  106  604 

17.  Curtner,  26  Fed.  R.  296  124 

v.  Daniel,  6  Wheat.  642  597 

v.  Dashiel,  3  Wall.  688  601 

v.  Davis,  5  Cranch  C.  C.  622         547 

v.  Dawson,  101  U.  8.  569  555 

r.  Delaware,  L.  &  W.  R.  R.  Co., 

40  Fed.  R.  101  536 

v.  Devaughan,  3  Cranch  C.  C. 

84  504 
v.  Dodge,  2  Gall.  313                     505 


lxx 


TABLE   OF   CASES. 
[References  are   to  pages.] 


United  States  v.  Duane,  Wall.  C.  C. 
102  502, 505 

493 


v.  Durling,  4  Biss.  509 

p.    Ebbs,    10    Fed.    R. 

Hughes,  473 

v.  Eliason,  16  Pet.  291 

v.  Elizabeth,  9  Reporter,  232        538 

v.  Emerson,  4  Craneh  C.  C.  188    503 

v.  Fields,  4  Blatchf.  326         256,  262 


369;   4  

489    

555    


v.  Fossatt,21  How.  445 

v.  Fox,  94  U.  S.  315 

v.  Frazer,  22  Fed.  R.  106 

v.  Gear,  3  How.  120 

v.  Gillespie,  6  Fed.  R.  803 

v.  Gomez,  1  Wall.  690 

„. ,  3  Wall.  752 

v. ,  23  How.  326 

v.  Goodwin,  7  Craneh,  108 

v.  Green,  3  Mason,  482 

v.  Gunning,  18  Fed.  R.  511 

v. ,  22  Fed.  R.  653 

v.  Haas,  5  Fed.  R.  29 

v.  Hall,  131  U.  S.  50 

v.  Hamilton,  109  U.  S.  63 

v.  Harrill,  McAll.  243 

p.  Hilliard,  3  McL.  324 

17.  Hodge,  13  How.  478 

17.  Hoffman,  4  Wall.  158 

v.  Howland,  4  Wheat.  108 

v.  Huffmaster,  35  Fed.  R.  81 

i'.  Hughes,  11  How.  552 

v.  Insley,  130  U.  S.  263 

v.  Jailer  of  Fayette  County,  2    | 


277 
535 
558 
12  1 

306,  308 
196  : 

540,  002 
605| 

622,  623 
691 

544,  547 
12 
12 
490 
597 
597 
400 
400 
400 

COO 

ooo 

101 

22 

109 

10,  197 


United  States  v.  Nashville,  C.  &  St.  L. 
Ry.  Co.,  118  U.  S.  120 

v.  New  Orleans,  98  U.  S.  381 
v.  Nye,  4  Fed.  R.  888 
u.  One  Case,  1  Paine,  400 

—  v.  Parrott,  McAll.  271     307,  332,  336 
_  v. ,  McAll.  447       279,  280,  427, 

431 

—  v.  Patterson,  26  Fed.  R.  509  503 

—  v.  ,  29  Fed.  R.  775      543,  547, 

548 

—  v.  Perrin,  131  U.  S.  55 

—  v.  Peters,  5  Craneh,  115 

—  i7.  Philadelphia  &  R.  R.  R.  Co., 
123  U.  S.  113 

—  v.  Pings,  4  Fed.  R.  714 

—  v.   Port  of  Mobile,  12  Fed.  R. 
768 

—  i7.  Pratt  Coal  &  Coke  Co.,  18 
Fed.  R.  708   65,  80,  113,  126,  128,  139, 

140,  175,  176,  573 


10 
530 
530 
427 


597 
535 

550 
430 

536 


Abb.  U.  S.  265 

—  17.  Jones,  109  U.  S.  513 

—  „. ,  131  U.  S.  1 

—  i;.  Kane,  23  Fed.  R.  748 

—  17.  Knight,  14  Pet.  301 
-,  1  Black,  488 


532,  546 
565 
22,  35 
371 
550 
623 


431 
556 
5 
530 
544 
530 

499 
v.  Sampevreac,  Hempst.  118  520, 
521  523  525 
v.  Sanborn,  28  Fed.  R.  299'  492^  494 
v.  Scholfield,  1  Craneh  C.  C 
17.  Schurz,  102  U.  S.  378 


Price.  2  Wash.  356 
Rathbone,  2  Paine,  578 
Ravara,  2  Dall.  297 
Reid,  12  How.  361 
Rogers,  23  Fed.  R.  658 
Rose,  14  Fed.  R.  681 
St.   Charles  Co.,  31  Fed. 


R. 


536,  539 
C  C. 

391 

69,  73 

539 


v.    Labette   County,  7   Fed.   R. 

318 
17.  Lafontaine,  4  Craneh 

173 

v.  Lee,  106  U.  S.  196 

17.  Lee  County,  2  Biss.  77 

v.  Liddle,  2  Wash.  205 

i>.Linn,  15  Pet  220 

».  Louisiana,  123  U.  S.  32 

v.  Louisville  &  P.  Canal  Co.,  4 

Dill.  601 

v.  Macon  County,  99  U.  S.  582 

17.  Mann,  2  Brock.  9 

17.  Maxwell,  3  Dill.  275 

v.  McLaughlin,  24  Fed.  R.  823 

v.  McLemore,  4  How.  286 

v.  McRae,  L.  R.  4  Eq.  327 

17. ,  L.  R.  3  Ch.  App.  79 

v.  Memphis  &  L.  R.  R.  Co.,  6 

Fed  R.  237  504,  506 

v.  Minor,  114  U.  S.  233  109, 139 

i\  Mississippi  &  R.  R.  B.  Co.,  3 

Fed.  R.  548 ;  1  McCra.  601  308 

17.  Mitchell,  2  Wash.  478  401 

v.  Myers,  2  Brock.  516  13 


130    508 

73,  74, 

115,  537 

396 


398 

574 

64 

293 
536 

502,  504 
530 

219 
322 

178 
178 


v   Scott,  3  Woods,  334 

v.  Scroggins,  3  Woods,  529  509 

!7.  Sherman,  98  U.  S.  565  564 

v.  Stephenson,  1  McL.  462  574 

v.  Stone,  14  Pet.  524  598 

17.  Sturgis,  14  Fed.  R.  810  531 

v.  Tetlow,  2  Low.  159  550 

v.  The  Glamorgan,  2  Curt.  236     611 

v.  Thompson,  98  U.  S.  486      10,  197, 

558 

v.  Throckmorton,  98  U.  S  61        128 

17.  Tilden,  25  Int.  Rev.  Rec.  352    411 

v.  Tread  well,  15  Fed.  R.  532  480 

v.  Union  Pacific  R.  R.  Co.,  91 

U.  S.  72  537 
y. 98  U.  S.  569      104,  109,  126, 

551 

r. ,  2  Dill.  527  536,  537,  538 

v. ,  4  Dill.  479  539 

17.  Wayne,  Wall.  C.  C.  134  506 

p.  White,  17  Fed.  R.  561       109,  136, 

139,  140,  177 

».  Wilkinson,  12  How.  246  400 

v.  Williams,  4  Craneh  C.  C.  372     412 

17.  Williamson,  3  Am.  L.  Reg. 

729  547 

17. .  4  Am.  L.  Reg.  5        544,  547 

p.  Wilson,  118  U.S.  86  16 

17.  Yates,  6  How.  605  162 

v.  Young,  94  U.  S.  258  540 


TABLE   OF   CASES. 
[References  are  to   pages.] 


lxxi 


United    States   Annunciator    Co.    v. 

Sanderson,  3  Blatchf.  184 
United  States  M.  A  Assoc,  v.  Barry, 

131  U.  S.  100 
Universities  of  O.  &  C.  v.  Richardson, 

6  Ves.  689 
University  College  v.  Foxcroft,  2  Pep. 

in  Cli.  244 
Urlin  v.  Hudson,  1  Vern.  332        193, 

Urner  v.  Kayton,  17  Fed.  R.  539 

v. ,  17  Fed.  R.  845 

Utterson  v.  Mair,  2  Ves.  Jr.  95 
Uvedale  v.  Uvedale,  3  Atk.  117 
Uxbridge  (Lord)  v.  Staveland,  I  Ves. 
Sen.  56  114,140,173, 


556 
311 

264 

194, 
196 
461 
461 
343 
497 

219 


V. 

Vaigneur  j;.  Kirk,  2  Desaus.  (S.  C.) 

640  448 

Vail  v.  Knapp,  49  Barb.  (N.  Y.)  299      305 
Vallandigham,  Ex  parte,  1  Wall.  243       5, 

540 

,  Trial  of,  45  545 

Vallette  v.  Whitewater  Valley  Canal 

Co.,  4  McL.  192  13,  84 

Van  Allen,  In  re,  37  Barb.  (N.  Y.)  225 

370 
Van  Alst  v.  Hunter,  5  Johns.  Ch.  (N. 

Y.)  148  452 

Van  Antwerp  v.  Hulburd,  7  Blatchf. 

426  161 

Van  Beil  v.  Prescott,  82  N.  Y.  630^        318 
Van  Brocklin  v.  Tennessee,  117  U.  S. 

151  15 

Vancouver  v.  Bliss,  11  Ves.  458  477 

Van  Dyck  v.  McQuade,  85  N.  Y.  616 

360,  369,  370 
Vane  v.  Lord  Barnard,  2  Vern.  738  307 
Van  Home,  Matter  of,  7  Paige  (N.  Y.), 

46  387 

Vann  v.  Barnett,  2  Bro.  C  C.  158  377 

Van  Ness  v.  Heineke,  2  Cranch  C.  C. 

259  426 

Van  Norden  v.  Morton,  99  U.  S.  378 

9,  16,  309,  438,  558 
Van  Orden,  Ex  parte,  3  Blatchf.  166  540 
Van  Reimsdyk  v.  Kane,  1  Gall.  371  86 
Van  Rensselaer  v.  Kearney,  11  How. 

297  558 

Vansant  v.  Gaslight  Co.,  99  U  S.  213 

005 
Vanstophorst  v.  Maryland,  2  Dall.  401 

428 
Van  Vechten  v.  Terrv,  2  Johns.  Ch. 

(N.  Y.)  197  87 

Van  Wyck  v.  Knevals,  106  U.  R.  360       15 

v.  Re:d,  10  How.  Pr.  (N.  Y.)  366 

408 
Varick  v.  Mayor  of  N.  Y.,  4  Johns. 

Ch.  (N.  Y.)  53  333 

Vasse  v.  Smith,  2  Cranch  C.  C.  31        426 


Vattier  v.  Hinde,  7  Pet.  252  103,  230, 

259,  267 
Vaughan  v.  Central  Pacific  R.  R.  Co., 

4  Sawy.  280  8 

v.  Fitzgerald,  1  Sch.  &  Lef.  316 

415,  416 

v.  Vaughan,  1  Dick.  90  382 

Vaughn  v.  Nortbrup,  15  Pet.  1  68 

Veach  v.  Rice,  131  U.  S.  293         247,  251 
Veazie  v.  Williams,  3  Story,  611  480 

Venables  v.  Foyle,  1  Ch.  Cas.  2  528 

Venice    (Town   of)    v.   Murdock,   92 

U.  S.  494  557 

Verden  v.  Coleman,  18  How.  86  467 

Vermeule,  Matter  of,  10  Ben.  1  487 

Vernon,  The,  36  Fed.  R.  113        491,  492, 

493 
Verplanck  v.  Mercantile  Ins.  Co.,  2 

Paige  (N.  Y.),  438  377 

Verplank  v.  Caines,  1  Johns.  Ch.  (N. 

Y.)  57  170,  173 

Very  v.  Levy,  13  How.  345  318 

Vicksburg  &  M.  R.  R.  Co.  v.  Putnam, 

118  C.  S.  545  556 

Vigel  v.  Hopp,  104  U  S.  441         138,  218, 

396 
Vigers  v.  Lord  Audley,  9  Sim.  72      273, 

277 

v. ,  9  Sim.  408  275 

Vigo's  Case,  21  Wall.  648  534 

Villa  v.  Rodriguez,  12  Wall.  323  3 

Villabolos  v.  United  States,  6  How. 

81  005 

Vinal  v.  Continental  C.  &  I.  Co.,  34 

Fed.  R.  228  570 

Vipan  r.  Mortlock,  2  Meriv.  476  336 

Virginia  v.  West  Virginia,  11  Wall. 

39  77 

Virginia  Coupon  Cases,  114  U.  S.  269 

73,  76,  77,  323 

,  114  U.  S.  325  322 

Voce  v.  Lawrence.  4  McL.  203  426 

Von  Hoffman  v.  Quincy,  4  Wall,  535 

536 
Von  Rov  v.  Blackman.  3  Woods,  98  151 
Vose  v.  Philbrook,  3  Storv,  335  96 

v.  Reed,  1  Woods,  647  343 

Voss  v.  Luke,  1  Cranch  C.  C.  331      507, 

508 


TV. 


12 


Wabash  Cases,  29  Fed.  R.  161 

Wabash  &  E.  Canal  Co.  v.  Beers,  1 
Black,  54  467 

v. ,  2  Black,  448  89,  90 

Wabash,  St.  L  ,<:  1'.  liv.  Co.  v.  Cen- 
tral Trust  Co..  22  Fed.  R.  138      254,  345 

v. ,  22  Fed.  R.  269 

v. ,  22  Fed.  R.  272 

v. ,  23  Fed.  R.  513 


Wagner  r.  Baird,  7  How.  234 
v.  Mcars,  3  Sim.  127 


360 

18,  345 

2^2.  315, 

651,  570 

10,  197 

290 


lxxii 


TABLE    OF    CASES. 
[References  are  to  pages.] 


Wagstaff  v.  Bryan,  1  Russ.  &  M.  28  265 
Wainwright  v.  Waterman,  1  Ves.  Jr. 

313  85 

Waite,  In  re,  1  Low.  321  497 

Wake  v.  Parker,  2  Keen,  70  64,  65 

Wakelin  v.  Walthal,  2  Ch.  Cas.  8  528 
Walburn  v.  Ingilby,  1  M.  &  K.  61  132 
Waleot  v.  Walker,  7  Ves.  1  316 

Walden  v.  Bodley,  14  Pet.  150      138,  140, 
199,  243,  445 

v.  Skinner,  101  U.  S  577      13,  95,  96 

Wales  v.  Whitney,  114  U.  S.  564        542, 

546 
Walker  v.  Easterby,  6  Ves.  612  499 

v.  Jackson,  2  Atk.  625  4 

u.  O'Neill,  38  Ferl.  R.  374  568 

v.  Parker,  5  Cranch  C.  C.  639      425, 

420,  431 

v.  Powers,  104  U.  S.  215        121,  126, 

127,  175,  186,  187 

■  v.  Smith,  21  How.  57'.) 

v.    State   Harbor   Comm'rs,    17 

Wall.  648 

v.  United  States,  4  Wall.  163 

v.  Wild,  1  Madd  528 

Walkley  v.  Muscatine,  6  Wall.  481 
Wall,  Ex  parte,  107  U.  S.  265 
Wallace  v.  Holmes.  9  Blatchf.  65 
v.  Loomis,  97  U.  S.  146 


J22 

443 
595 
383 

16 
535 

97 

2,  360,  365. 

300 

v.  Wallace,  Halst.  Dig.  (N.  J.) 

173  219 

Waller  v.  Harris,  7  Paige  (N.  Y.),  167  470 
Wallworth  v.  Holt,  4  M.  &  C.  619  85,  89 
Walmsley  v.  Child,  1  Ves.  Sen.  343  142 
Walser  r.  Seligman,  13  Fed.  R.  415 
Walsh  v.  Memphis,  C.  &  N.  W.  R.  R. 

Co.,  6  Fed.  R.  797 

v.  Preston,  109  U.  S.  297 

v.  Trevannion,  16  Sim.  178 

Walsington  v.  Nevin,  128  U.  S.  578 
Walton  v.  Coulson,  1  McL.  125 

v.  Crowley,  3  Blatchf.  440 

v.  Herbert,  3  Ureen  Ch.  (N.  J.) 

73  141,  149 

v.  Johnson,  15  Sim.  352  328,  371 

Warburton  v.  London  &  B.  Ry.  Co., 

2  Beav.253 
Ward  v.  Arredondo,  1  Paine,  410 

v. ,  Hopk.  (N.  Y.)  213 

v.  Hill,  4  Gray  (Mass.),  593 

a.  Seabry,  4  Wash.  420 

Wardle  v.  Claxton,  9  Sim.  412 
Ware  v.  Grand  Junction  W.  W.  Co, 

2  Russ.  &  M.  470 
v.  Regent's  Canal  Co.,  3  De  G. 

&  J.  212 

v.  Ware,  42  Ga.  408 

Waring  v.  Crane,  2  Paige  (X.  Y.) 


18 

101 
99 

471 

610 
78 

317 


338 
96 
409 
447 
150 
327 

323 

300 
343 


79 

66,67 

Warmouth,  Ex  parte,  17  Wall.  64  533 

Warren,  Ex  port?,  10  Ves.  022       344,  376 

v.  Fake,  49  How.  Pr.  (N.  Y.)  430  345 

v.  Furstenheim,  35  Fed.  R.  691     554 

v.  Moody,  9  Fed.  R.  673  215 


Warthen  v.  Brantley,  5  Ga.  571  120 

Wartnaby   v.  Wartnaby,  Jacob,  377 

67,68 
Washburn  &  M.  Manuf.  Co.  v.  Col- 
well  S.  B.  F.  Co.,  1  Fed.  R.  225         291 

v.  Haish,  4  Fed.  R.  690  312 

v.  Scutt,  22  Fed.  R.  710         194,  247 

Washington  Bridge  Co.  v.  Stewart,  3 

How.  413  622 

Washington    Co.  Nat.  Bank  v.  Lee, 

112  Mass.  521  399 

Washington  Ins.  Co.  v.  Slee,  2  Paige 

(X.  Y.'),  365  257 

Washington   R.  R.   v.   Bradleys,    10 

Wall.  299  252 

Wa?kern  v.  Diamond,  Hempst.  701  426 
Waters  v.  Carroll,  9  Yerg.  (Tenn.)  102  381 
Waterton  v.  Croft,  5  Sim.  502  156 

Waterville  v.  Van  Slyke,  110  U.  S. 

6S9  597 

Watkins,  Ex  parte,  3  Pet.  193       541,  543, 

544 

v.  Atchison,  10  Hare,  App.  xlvi       416 

v.  Stone,  2  Sim.  49  188 

Watson  v.  Smith,  7  Fed.  R.  359  212 

v.  Sutherland,  5  Wall.  74    7,  17,  309 

v.  Tarpley,  18  How.  517 

Watt  v.  Starke,  101  U.  S.  247 


557,  558 
447,451, 
452 


Watts  v.  Waddle,  1  McL.  200 

v. ,  6  Pet.  3E9 

Wayman  v.  Southard,  10  Wheat.  1 


95 
443 

563, 
597 


Weale  v.  West  Middlesex  W.  W.  Co., 

1  Jac.  &  W.  358  92 

Weaver  v.  Alter,  3  Woods,  152     249,  250 
Webb,  In  re,  Shelf,  on  Lun.  417  67 

i».  Bvng,  8  De  G.  M.  &  G.  633       475 

v.  Dill,  18  Abb.  Pr.  (X.  Y.)  264    283 

v.  Pell,  3  Paige  (N.  Y.),  368  524 

v.  Powers,  2  Woodb.  &  M.  497     215, 

315,  317 

v.  Vermont  Cent.  R.  R.  Co.,  9 

Fed. R.  703 
Webber  v.  Bishop,  13  Fed.  R.  49 

v.  Humphreys,  5  Dill.  223 

Weber  v.  Lee  County,  6  Wall.  210 


11 

574 

29 

536, 

538 

598 
586 


Webster  v.  Cooper,  10  How.  54 

v.  Crothers,  1  Dill.  301 

Webster    Loom   Co.   v.   Higgins,    13 

Blatchf.  349  244 

v.  Short,  10  Off.  Gaz.  1019  25S 

Wedekind  v.  Southern  Pacific  Co.,  36 

Fed.  R.  279  575 

Weeks  v.  Weeks,  100  N.  Y.  626  360 

Weeth  v.  New  England  Mortgage  Co., 

100  II.  S.  605  597 

Weide  v.  Insurance  Co.  of  N.  A.,  3 

Chic.  L.  N.  353  551 

Weller  v.  J.  B.  Pace  Tobacco  Co.,  32 

Fed.  R.  860  571 

Wellesley  r.  Wellesley,  4  M.  &  Cr. 

554  182,  187 

Wellford  v.  Miller,  1  Cranch  C.  C.  485  427 


TABLE    OF    CASES. 


lxxiii 


[References  are  to  pages.] 


293 

79 

268 


Welling  v.  La  Bau,  34  Fed.  R.  40         463 
Wells  v.  Oregon  Ry.  &  Nav.  Co.,  15 
Fed.  R.  501  ;  8  Savvy.  600  115 

v.  Southern   Minn.   Ky.  Co.,  1 

Fed.  R.  270  350 

v.  Strange,  5  Ga.  22  139 

v.  Wood,  10  Ves.  401  244 

Werder,  In  re,  15  Fed.  R.  789  350 

Wescott  v.  Fairfield,  Pet.  C.  C.  45  26 

West  v.  Home  Ins.  Co.,  18  Fed.  R.  622    630 

v.  Randall,  2  Mason,  181     90,  91,  96 

104,  122,  124,  1S6 

v.  Smith,  3  Beav.  306  294 

Westbrook's  Trusts,  In  re,  L.  R.  11 

Eq.  252 
Westcomb  v.  Wcstcomb,  1  Dick..  233 
Westcott  y.Cady,  5  Johns.  Ch.  (N.  Y.) 

334 
Western  Pacific  R.  R.  Co.  v.  United 

States,  108  U.  S.  510  12 

Western  Union  Tel.  Co.  v.  Atlantic 

&  P.  Tel.  Co.,  7  Biss.  367  363 

v.  Brown,  32  Fed.  R.  337  30 

v.  Burlington  &  S.  W.  Ry.  Co., 

11  Fed  R.  1  333 
v.  Rogers,  93  U.  S  565  595 

v.  St.  Joseph  &  W.  Ry.  Co.,  3 

Fed.  R.  430  319,  333 

v.  Union  Pac.  Ry.  Co.,  3  Fed.  R. 

423  319 

y. ,  3  Fed.  R.  721  333 

Westinsjhouse  A.  B.  Co.  v.  Carpenter, 

32  Fed.  R.  484  15 
Westley  v.  Williamson,  2  Moll.  458  496 
Weston  i'.  Charleston,  2  Pet.  449^  614 
v.  Empire  Assur.  Co.,  L.  R.  6  Eq. 

23  117 

v.  Hajjgerston,  G.  Coop.  134  514 

West  Portland  Homestead  Assoc,  v. 

Lownsdale,  17  Fed.  R.  205  197 

West  Wisconsin  Ry.  Co.  v.  Foley,  94 

U.  S.  100  624 

Wetherill  v.  New  Jersey  Zinc  Co.,  1 

Ban.  &  A.  Pat  Gas.  105  10 

Wetmore  v.  St.  Paul  &  P.  R.  R.  Co., 

3  Fed.  R.  177  446 

v.  Scovell,  3  Edw.  (N.  Y.)  515       298 

v.  United  States,  10  Pet.  047  398 

Wheeler   v.  McCormick,   8    Blatchf. 

267 ;  4  Fisher's  Pat.  Cas.  433  32,  194, 
196,  202,  206,  208,  468 
Whelan  v.  New  York,  L.  E.  &  W.  R.  R. 

Co.,  35  Fed.  R.  849  577,  578,  579,  580 
Whipple  v.  Cumberland  C.  M.  Co.,  3 

Story,  84  492,  493 

v.  Hutchinson,  4  Blatchf.  190       334, 

335 
Whistler  v.  Webb,  Bunb.  53  87 

Whitbeck    v.     Edtjar,    2    Barb.    Ch. 

(N.  Y.)  106  107,120,175 

Whitbread  v.  Brockhurst,  1  Bro.  C.  C. 

404 ;  2  Ves.  &  B.  154,  n  188 

White  v.  Arthur,  10  Fed   R.  80  564 

v.   Bishop   of   Peterborough,  3 

Swanst.  109  356 


White  v.  Bovce,  21  Fed.  R.  228  17 

v.  Buloid,  2  Paige  (N.  Y.),  164      254 

v.  Crow,  119  U.  S.  183  18 

17.  Foljambe,  11  Ves.  337  479 

v.  Hess,  8  Paige  (X.  Y.),  544        407 

v.  Hillacre,  3  Y.  &  C.  597  89 

v.  Keokuk  &  D.  M.  Ry.  Co.,  52 

Iowa,  97  375,  388 

v.  Lisle,  3  Swanst.  342  448,  451 

r.  St.  Guirons,  Minor  (Ala.),  331   398 

v.  United  States,  1  Black,  501 

v.  Whitman,  1  Curt.  494 

Whitehouse  v.   Partridge,  3  Swanst. 

365 
Whitelegg  v.  Whitelegg,  1  Bro.  C.  C. 

57 
Whiteside  v.  Prendergast,  2  Barb.  Ch. 

(N.  Y.)  471 
Whitesides    v.   Lafferty,   3   Humph. 

(Tenn.)  150 
Whitfield,  Ex  parte,  2  Atk.  315 

v.  Fausset,  1  Ves.  Sen   392 

Whiting  v.  Bank  of  the  U.  S.,  13  Pet. 

6     258,  407,  472,  519,  520,  523,  525,  526 
Whitman  v.  Hubbell,  30  Fed.  R.  81         24 

27,88 
Whitmore,  Ex  parte,  1  Dick.  143 
Whitney,  Ex  parte,  13  Pet.  404 

v.  Belden,  4  Paige  (N.  Y.),  140 

v.  Buckman,  26  Cal.  447 

v.  Cook,  99  U.  S.  607 

v.  Huntt,  5  Cranch  C.  C.  120 

Whittemore  v.  Cutter,  1  Gall.  429 

v.  Farrington,  76  N.  Y.  452 

Whittenton  v.  Memphis  &  O.  R.  P 

Co.,  19  Fed.  R.  273 
Whittingham   v.   Burgoyne,  3  Anst 

900 

v.  Wooler,  2  Swanst.  428,  n 

Whittlesey  v.  Delaney,  73  N.  Y.  571 
Whorewood    v.    Whorewood,   1    Ch 

Cas.  250 
Wickliffe  v.  Hill,  3Litt.  (Ky.)  330 

v.  Owinajs,  17  How.  47 

Wiggins  v.  Gray,  24  How.  303 
Wigton  v.  Brainerd,  28  Fed.  R.  29 
Wilcox  i'.  Henry,  1  Dall.  69 

v.  Jackson,  13  Pet.  498 

Wilde  r.  Gibson,  1  II.  L.  C.  605 
Wdder  v.  McCormick,  2  Blatchf.  31 


535 
194 

390 

332 

388 

373 
376 
142 


390 
535 
474 
343 
616 
420 
214 
3 

585 

181 
341 
370 


Wildridge  ».  McKane.  2  Moll.  545 
Wilkins  r.  Aikin,  17  Ves.  422 

v.  Fry,  1  Mer.  -J  1 1 

v.  Jordan,  3  Wash.  226 

Wilkinson  r.  Belslicr,  2  Bro.  C.  C.  272 

v.  Culver,  25  Fed.  H.  639 

v.  Dobbie,  12  Blatchf.  298 

v.  Fowkes,  '.)  Hare,  193 

Willan  v.  Willan.  16  Ves.  72 
Willard  v.  Tavloe,  8  Wall.  557 
Willcox  v.  Beilaers,  Turn.  &  R.  491 
Williams,  In  re,  37  Fed.  R.  325 

v.  Bank  of  U.  8.,  11  Wheat.  414   5!>8 

v.  Bankhead,  19  Wall.  563       95,  100 


528 
398 
190 
597 
482 
64 
73 
119 
129, 
171 
387 
310 
81 
335 
289 
370 
306 
272 
523 
4,97 
479 
492 


lxxiv 


TABLE    OF   CASES. 
[References  are  to  pages.] 


Williams  v.  Boston  &  A.  R.  R.  Co.,  17 

Blatclif.  21  213 

v.  Cooke,  10  Ves.  406  260 

v.  Corwin,  Hopk.  CI..  (N.  Y.)  471     166 

v.  Davis,  1  Sim.  &  S.  426  226 

v.  Douglas,  5  Beav.  82  116 

v.  Empire  Transp.  Co.,   1  N.  J. 

L.J.  315  191,192 

v.  Gibbes,  20  How.  535  228 

v.  Hintermeister,  26  Fed.  R.  889  346 

v.  Jackson,  107  U.  S.  478  446 

v.  Mellish,  1  Vera.  117.  n  525 

v.  Morgan,  111  U.  S.  684  87 

v.  Nottawa,  104  U.  S.  209       436,  438 

v.  Price,  4  Price,  156  448 

v.  Walker,  2  Rich.  Eq.   (S.  C.) 

291  144 

v.  Williams,  9  Mod.  299  103 

Williams,  M.  &  R.  Co.  v.  Haynor,  7 

Biss.  245  589 

Williamson  v.  Gordon,  19  Ves.  114      471, 

472 

v.  Wilson,  1  Bland  (Md.),  418      372, 

373,  379,  380 
Williamsport    Bank    v.   Knapp,    119 

U.  S.  357  597 

Willings  v.  Consequa,  Pet.  C.  C.  301  429 
Wilson,  Ex  parte,  114  U.  S.  417     542,  543 

v.  Barn  urn.  1  Wall.  Jr.  342  450 

„. >  8  How.  258  597 

v.  Barnev,  5  Hun  (N.  Y.),  257       387 

v.  Blair,  119  U.  S.  387  597 

v.  City  Bank,  3  Sumner,  422  85, 

101,  113 

v.  Daniel,  3  Dall.  401  23,  24,  607 

v.  Fine,  38  Fed.  R.  789  530 

v.  Gaines,  103  U.  S.  417  171 

v.  Ginger,  2  Dick.  521  450 

v.  Greenwood,  1  Swanst.  471        347, 

380,  381 

v.  Koontz,  7  Crancb,  202  197 

v.  Luke,  1  Vict.  L.  R.  127  316 

v.  Riddle,  123  U.  S.  608         450,  451 

v.  Sandford,  10  How.  99  25 

v.  Seligman,  10  Reporter,  651       256 

v.  Stolley,  4  McL.  272  332 

„. .  4  McL.  275  114,  236 

v.  Todd,  1  M.  &  C.  42  103 

v.  Union  Sav.  Assoc,  30  Fed.  R. 

521  571 
v.  Western  Union  Tel.  Co.,  34 

Fed.  R.  561  30,  570,  574 

v.  Wilson,  1  Jac.  &  W.  459  107 

Wilson's  Heirs  v.  Life  &  Fire  Ins.  Co., 

12  Pet.  140  598 

Wilton  v.  Jones.  2  Y.  &  C.  244  87 

Winans  v.  Eaton,  1  Fisher  Pat.  Cas. 

181  312 
v.  New  York  &  E.  R.  R.  Co  ,  21 

How.  88  430,  431 

Winberg  v.  Berkeley  Co.  R.  R.  &  L. 

Co.,  29  Fed.  R.  721  575 

Winchell  v.  Coney,  27  Fed.  R.  482  584 
Winchester  (Bishop  of)  v.  Fournier, 

2  Ves.  Sen.  445  448,  476 


Windsor  v.  McVeigh,  93  U.  S.  274        199 
Winegar  v.  Cahn,  29  Fed.  R.  676  483 

Wing  v.  Fairhaven,  8  Cush.  (Mass.) 

363  330,  340 

Winnemans  v.  Edgington,  27  Fed.  R. 

324  587 

Winslow  v  Nayson,  113  Mass.  411        340 
Winter  v.  Ludlow,  3  Phila.  (Pa.)  464  104, 

152 
v.   Simonton,   3   Cranch   C.   C. 

104  431 

Wintermute  v.  Smith,  1  Bond,  210        491 
Winters  v.  Ethell,  132  U.  S.  207  602 

Winthorp  v.  Royal  Exchange  Assur. 

Co.,  1  Dick.  282 
Winthrop  v.  Murray,  7  Hare,  150 
v.  Union  Ins.  Co  ,  2  Wash.  7 


Wiscart  v.  Dauchy,  3  Dall.  321 
Wisdom  v.  Memphis,  2  Flipp.  285 
Wiser  v.  Blachly,  2  Johns.  Ch.  (N.  Y.) 

488 
Wisner  v.  Barnet,  4  Wash.  631        81 


499 
435 
429, 
430 
591 
537 


522 
,96, 
176 
379 
554 
513 
514 
572 
536 
129, 


Wiswell  v.  Starr,  48  Me.  401 
Witters  v.  Foster,  26  Fed.  R.  737 

v.  Sowles,  32  Fed.  R.  130 

v. ,  32  Fed.  R.  765 

Wolff  v.  Archibald,  14  Fed.  R.  369 

v.  New  Orleans,  103  U.  S.  358 

Wollensak  v.  Reiner,  115  U.  S.  96 

130,  133,  175,  176 
Wolverton  v.  Lacey,  18  L.  R.  672  551 
Womersley  v.  Meirritt,  L.  R.  4  Eq. 

695  238 
Wood  v.  Beadell,  3  Sim.  273  327 
v.    Cleveland    Rolling     Mill,    4 

Fisher's  Pat.  Cas.  550  11 

17.  Dummer,  3  Mason,  308        91,  122 

v.  Griffith,  1  Meriv.  35  516 

v.  Guarantee  T.  &  S.  D.  Co.,  128 

U.  S.  416 

v.  Lide,  4  Cranch,  180 

v.  Mann,  1  Sumner,  506 


349,  355 

603,  607 

189,  190, 

200 

397 

143 

406 

376 

487,  488 


v. ,  2  Sumner,  316 

v.  Swift,  81  N.  Y.  31 

v.  United  States,  16  Pet.  342 

v.  Wood,  4  Russ.  558 

Woodbury,  In  re,  7  Fed.  R.  705 
Woodruff  c.  Dubuque  &  S.  C.  R.  K. 

Co.,  30  Fed.  R.  91  217 
v.  North  Bloomfield  G.  M.  Co., 

18  Fed.  R.  753  301,  308 
Woods  v.  Monroe,  17  Mich.  238  4 
v.  Morrell,  1  Johns.  Ch.  (N.  Y.~) 

103  115,  216,  226 

v.  Woods,  10  Sim.  197  277 

Woodward  v.  Woodward,  1  Dick.  33     273 
Woodworth  v.  Edwards,  3  Woodb.  & 

M. 120  336 

v.  Hall,  1  Woodb.  &  M.  389  337 

v.  Rogers,  3  Woodb.  &  M.  135      337 

v.  Sherman,  3  Story,  171  498 

v.  Stone,  3  Story,  749  275 


TABLE   OF   CASES. 
[References  are   to   pages.] 


lxxv 


Woollara  v.  Hearn,  7  Ves.  211  446 

Woolridge  v.  McKenna,  8  Fed.  R.  650  26 
Woolsey  v.  Judd,  4  Duer  (N.  Y.),  379  298 
Wooster  v.  Blake,  7  Fed.  R.  816  208 

v.  Gurabirnner,  20  Fed.  R.  167     458, 

461 

v.  Handv,  23  Fed.  R   49        477,  482, 

483,  495 

v.  Sidenbergh,  U.  S.  C.  C,  S.  D 

N.  Y.,  Nov.  6,  1889 
Worcester  v.  Truman,  1  McL.  483 
Worden  o.  Searls,  121  U.  S.  14 
Works  v.  Junction  R.  R.,  5  McL.  425 


Wormald  v.  De  Lisle,  3  Beav.  18 
Wormley  v.  Wormley,  8  Wheat.  421 

Wormser  v.  Dahlman,  16  Blatchf.  319 
Worswick  Manuf.  Co  v.  City  of  Phila 

delphia,  30  Fed.  R.  625 
Worthington  v.  Seribner,  109   Mass. 

487 
Wortley  v.  Birkhead,  2  Ves.  Sen.  571 
Wray  v.  Hutchinson,  2  M.  &  K.  235 

Wren  v.  Kirton,  11  Ves.  377 

v.  Spencer  0.  M.   Co.,  18  Off. 

Gaz.  857 

v.  Weild,  L.  R.  4  Q.  B.  730 

Wright  v.  Atkyns,  1  Ves.  &  B.  313 

v.  Castle,  3  Meriv.  12 

v.  Dame,  1  Met.  (Mass.)  237 


418 
505 
507 
308, 
321 
114 
26, 
95 
573 

442 

177 
520 
239, 
241 
372 


231 
323 
327 
435 

182, 
418 

v.  Howard,  1  Sim.  &  S.  190     478,  480 

v.  Merchants'  Nat.  Bank,  1  Flipp. 


568 


344 
415 

587 
Wms. 

396 

82,  83 
191 


v.  Tatham,  2  Sim.  459 

v.  Wells,  1  Pet.  C-  C.  220 

Wrottesley  v.  Bendish,   3   P. 

235 
Wych  v.  Meal,  3  P.  Wms.  310 
Wylie  v.  Coxe,  15  How.  415 
Wynne  v.  Lord  Newhorough,  1  Ves. 

jr.  164 ;  3  Bro.  C.  C.  88  359,  369 

v. ,  15  Ves.  288  379,  380 

Wythe  v.  Palmer,  3  Sawy.  412  208 


Yale  Lock  Manuf.  Co.  v.  Colvin,  14 
Fed.  It.  269  482 


Yarbrough,  Ex  parte,  110  U.  S.  651 
Yates  v.  Arden,  5  Cranch  C.  C.  526 

v.  Hambly,  2  Atk.  237 

v.  Hardy,  Jacob,  223 

Yeaton  v.  Lenox,  8  Pet.  123 

Yick  Wo  v.  Crowley,  26  Fed.  R.  207 


543 
239 
102 
226 
121 
303, 
3K> 
11 
89 


Yonley  v.  Lavender,  21  Wall.  276 

York  v.  White,  10  Jur.  168 

York  (Archbishop  of)  v.  Stapleton,  2 

Atk.  136  241 

York    (Mayor   of)    v.    Pilkington,    1 

Atk.  282  92,  124 

v. ,  2  Atk.  302  304 

York  County  v.  Central  R.  R.,  3  Wall. 

107  431 

Young,  In  re,  7  Fed.  R.  855  192,  370 

v.  Bryan,  6  Wheat.  146  33 

v.  Colt,  2  Blatchf.  373  250 

v.  Cushing,  4  Biss.  456  99,  100 

v.  Davidson,  5  Cranch  C.  C.  515    425 

v.  Everest,  1  Russ.  &  M.  426         497 

v.  Ewart,  132  U.  S.  579 

v.  Grand  Trunk  By.  Co.,  9  Fed. 

R  348  551 

v.  Grundy,  6  Cranch,  51       215,  336, 

467 

v.  Kcighly,  16  Ves.  348  520 

v.  Merchants'  Ins.  Co.,  29  Fed. 

R.  273  493,  494,  590 
v.  Montgomery  &  E.  R.  R.  Co., 

2  Woods,  606  386,  387 
v.    Parker's   Adm'r,   132   U.  S. 

267  579 

v.  Pott,  4  Wash.  521  254 

Yovatt  v.  Winyard,  1  Jac.  &  W.  394    297 
Yow  v.  Townsend,  1  Dick.  59  514 

Yuba  County  v.  Pioneer  G.  M.  Co., 

32  Fed.  R.  183  30,  153 

Yuengling    v.   Johnson,    1    Hughes, 

607  281,  329,  330 
v.  Schile,  12  Fed.  R.  97  314 


Zambrino  v.  Galveston,  H.  &  S.  A. 

Ry.  Co.,  38  Fed.  R.  449        30,  153,  154 
Zeckendorf v.  Johnson, 123  U.  S. 617     591, 

695 
Zunkel  v.  Litchfield,  21  Fed.  It.  196     421 


CITATIONS. 


[references  are  to  pages.] 


U.  S.  CONSTITUTION. 


Page. 
Art.      I.    §  6.    159,  390,  412 
III.  20 

III.     §  1.     5 


Page. 
Art.  III.      §  2.       5,  72 

XI.  Amendment.    5,  68,  323 


U.  S.  REVISED   STATUTES. 


Page. 

Page. 

Page. 

§  1. 

406,  426. 

§  502. 

295,  296. 

§  657. 

32,  468. 

531. 

36,  37,  38,  39,  40 

41, 

593. 

295,  296. 

658. 

37,  38,  39,  40,  41 

43,  45,  47 

48, 

51, 

594. 

295,  296. 

42,43,44,45,  46 

52,  55,  56. 

595. 

295,  296. 

47, 48,  49,  50,  51 

532. 

35,  36. 

596. 

295,  296. 

52,  53,  55,  56. 

533. 

36. 

597. 

295. 

664. 

37. 

534. 

38. 

598. 

295,  296. 

674. 

603. 

535. 

38. 

509. 

205,  296. 

684. 

35. 

536 

39. 

600. 

295,  296. 

685. 

35. 

538. 

44. 

601. 

295. 

686. 

35. 

540. 

46. 

602. 

295. 

687. 

20,  21. 

541. 

48. 

603. 

295,  296. 

688. 

531,  533,  534. 

542. 

48. 

004. 

295,  296. 

691. 

592. 

543. 

50. 

605. 

295. 

602. 

466,  592. 

544. 

50. 

606. 

295. 

693. 

594. 

545. 

51. 

608. 

35,  36. 

695. 

592. 

546. 

52. 

609. 

295. 

606. 

592. 

547. 

52,  53. 

615. 

567. 

697. 

594. 

548. 

54. 

616. 

567. 

698. 

593. 

549. 

55. 

617. 

295. 

700. 

554. 

550. 

56. 

618. 

295. 

701. 

623. 

563. 

34. 

629. 

21,  22. 

702. 

593. 

567. 

567. 

631. 

466,  611. 

706. 

593. 

568. 

567. 

632. 

611. 

707. 

592. 

569. 

567. 

635. 

611. 

709. 

592,  504,  613,  623. 

571. 

36. 

636. 

611. 

710. 

613,  619. 

572. 

36,  37,  38, 

39, 

40, 

639. 

577,  578. 

716. 

531,  533,  536,  540 

41.  42,43 

44, 

45, 

641. 

542,  570,  582. 

717. 

389. 

46,  47,48, 

40, 

50, 

642. 

541,  583. 

718. 

144,  281,  329. 

51,  52,  53, 

55, 

56. 

643. 

541,  542,  569,  582. 

719. 

293,  204,  329. 

587. 

566. 

648. 

554. 

720. 

143,  303,  323. 

588. 

566. 

649. 

554. 

721. 

10,  556. 

591. 

295,  206. 

653. 

36. 

723. 

7,  324. 

CITATIONS. 

lxxvn 

Pace. 

Page. 

Page. 

724. 

398,  552. 

§  868. 

413. 

§  991. 

550. 

725. 

328,  406,  413,  502, 

875. 

433. 

992. 

550. 

503,  506. 

870. 

411,412, 

191. 

993. 

563. 

726. 

559. 

882. 

398. 

994. 

503. 

737. 

93,  572. 

883. 

398. 

997. 

004,607,612,  621 

738. 

158,  469,  473. 

884. 

399. 

998. 

611,  012. 

740. 

31. 

885. 

399. 

999. 

004,  615. 

741. 

31. 

886. 

399. 

1000. 

604,  612,  615. 

742. 

81. 

889. 

400. 

1003. 

616. 

743. 

58. 

891. 

400. 

1004. 

602,  603. 

744. 

59. 

892. 

400. 

1005 

603. 

7  j; -j. 

59. 

893. 

400. 

1007. 

563,  606. 

747. 

141,  183,  202. 

894. 

400. 

1008. 

500,  002. 

751. 

541. 

895. 

401. 

1009. 

601. 

752. 

541. 

896. 

401. 

1010. 

624. 

753. 

542. 

897. 

401. 

1011 

591. 

754. 

545. 

898. 

401. 

1012. 

605. 

755. 

545,  546. 

899. 

402. 

1017. 

613. 

756. 

546. 

900. 

402. 

1072. 

71. 

757. 

547. 

901. 

402. 

1750. 

224,  406. 

758. 

547. 

902. 

403. 

1909. 

593. 

759. 

547. 

903. 

403. 

1911. 

593 

760. 

547. 

904. 

404. 

3224. 

16,  322. 

761. 

547. 

905. 

404. 

3636. 

320. 

762. 

540. 

906. 

405. 

3037. 

320. 

763. 

548. 

907. 

405. 

4003. 

391. 

764. 

548.  - 

908. 

405. 

4064. 

391. 

705. 

548,  549. 

909. 

406. 

4065. 

391. 

766. 

549. 

911. 

148,  334, 

411,  507, 

4066. 

391. 

708. 

549. 

531,  546,  603. 

4071. 

433, 

783. 

508. 

912. 

334,  411, 

531,  540, 

4072. 

433. 

784. 

508. 

602. 

4073. 

433. 

785. 

508. 

914. 

529. 

4074. 

433. 

786. 

508. 

915. 

549. 

4799. 

35. 

787. 

501,  507,  532,  503. 

916. 

500,  562. 

4886. 

313,  330. 

788. 

501,  532. 

921. 

551. 

4887. 

313,  330. 

793. 

157. 

922. 

151. 

4918. 

248,  250,  475. 

800  to  877.  550. 

923. 

509. 

4920. 

213. 

824. 

481. 

945. 

400. 

4921. 

301,  311. 

828. 

485,  486,  487,  488. 

954. 

141,  208, 

234,  242, 

4922. 

480. 

829. 

411,489,490,491. 

292,  530,  532. 

4070. 

301,314. 

832. 

489. 

955. 

261,  264, 

553. 

5013. 

223,  406. 

847. 

490. 

956. 

554,  599. 

5141. 

344. 

848. 

491. 

966. 

503,  564. 

5191. 

344. 

849. 

494. 

907. 

560. 

5195. 

344. 

850. 

494. 

968. 

479. 

5201. 

344.' 

858. 

217,  410. 

983. 

481,  498. 

5205. 

344. 

861. 

395. 

984. 

498. 

5234. 

342,  344. 

862. 

395. 

985. 

502,  562. 

5235. 

342,  344. 

863. 

4,411,416,423. 

986. 

502. 

5236. 

342,  344. 

864. 

4,  410,  423. 

987. 

559,  564. 

5237. 

321,  342. 

865. 

4,  416,  421,  423. 

988. 

504. 

5242. 

549. 

866. 

4,  413,  427. 

989. 

564. 

5298. 

502. 

807. 

4,  418,  552. 

990. 

550. 

5300. 

502. 

lxxviii 


CITATIONS. 


U.  S.  STATUTES   AT   LARGE. 


Vol.  4. 
p.  278,  Chap.    68.    562. 

Vol.  17. 


p.  196, 

Chap.  255.     549. 

485, 

226,  §  4. 

536. 

Vol. 

18. 

p.    15, 

Chap.    24.     41. 

27, 

80.    48, 

591,  592, 

593. 

53, 

214.     55. 

75, 

286.     56. 

76, 

287.     37, 

51. 

113, 

333,  §  8. 

405. 

195, 

401,  §  1. 

36. 

§5. 

35,  36. 

§6. 

35,  36. 

251, 

463.     40. 

253, 

469.     593 

315, 

77.    447 

^449. 

§1- 

591. 

316, 

80.     591 

,593. 

333, 

95,  §  4. 

535. 

333, 

114,  §  5. 

593. 

371, 

130,  §  8. 

542,  569, 

582. 

470, 

137,  §  2. 

572,  576. 

§3. 

580. 

§4. 

588. 

§5. 

162,  190, 

436 

§6. 

585. 

§7. 

584. 

§8. 

158,  469, 

473. 

§9- 

599. 

480, 

148.     53. 

Vol.  19. 


4,  Chap.    11. 

37,  48,  51 

61,             147. 

37. 

63,             156. 

342,  344. 

206,             304. 

224,  406. 

240,               69. 

593. 

Vol.  20. 


27,  Chap.    27. 
101,  169. 


56. 

50,  51. 


145, 


§1- 

§2. 
§3. 
§6. 
203,  §  15. 


61. 
61. 

61. 
62. 
501. 


160, 

Chap.  269.     40. 

178, 

322.     50. 

175, 

326.     44. 

§1.    59. 

§2.     44,59. 

§  3.     60. 

§  4.    60. 

§5.    60. 

§  6.    60. 

§  7.    60. 

§  8.     60. 

§  9.    60. 

206, 

359,  §  17.    53. 

259, 

9.      56. 

263, 

20.     47. 

§1.    60. 

§2.     61. 

§3.     61. 

§4.     61. 

§5.     61. 

277, 

39,  §  1.     403. 

§  2.     403. 

§  3.     404. 

280, 

43.     38. 

318, 

97.     53,  55. 

320, 

99.     592. 

354, 

176,  §  2.     611,  612 

§  3.     612. 

355, 

177.     41. 

§  1.     41. 

415, 

183.     381,  455. 

Vol.  21. 


10, 

Chap.    18.     55. 

41, 

49.    37. 

45, 

59,  §  1.     42. 

62, 

17.    38,  39. 

§  4.     58. 

§5.     58. 

§  6.     68. 

§  7.     58. 

§  8.     58. 

63, 

18.     50,  51. 

§  1.     53,  62. 

§  2.     62. 

§  3.    62. 

§4.     62. 

§  7.    62. 

§  8.    62. 

55, 

120.    40, 41. 

§1.     59. 

§  2.    59. 

75, 

203.    52,  53. 

§  2.     53,  62. 

§  3.    62. 

§4.    62. 

§5     62. 

CITATIONS. 


lxxix 


p.  175, 

Chap  203,  §  7.    63. 

§8.    03. 

§  9.     63. 

§  10.     63. 

198, 

213.     53. 

308, 

Res.      44.     405. 

324, 

Chap.  45.     55. 

326, 

62.    55. 

330, 

71.     48. 

607, 

144.     42. 

§5.     43. 

§6.    43. 

511, 

154.    40. 

Vol.  22. 

p.     32, 

Chap.  48.    49. 

101. 

218.    45. 

172, 

312     40. 

§  5.     40. 

176 

351.     51. 

402 

25.     53. 

631, 

143.     484. 

Vol.  23. 


1, 

Chap 

1. 

43. 

18, 

38. 

35,  36. 

§2 

.    36. 

§4 

58. 

35, 

64. 

55. 

48, 

102. 

54. 

50, 

106. 

39. 

280, 

7. 

53. 

437, 

353. 

548. 

443, 

355. 

592,  593 

Vol.  24. 
p.     8,  Chap.  28.     342. 


83, 

422. 

36. 

106, 

581. 

38. 

127, 

745. 

45. 

214, 

848. 

37. 

308, 

928. 

37. 

336, 

931. 

52. 

379, 

104. 

321. 

406, 

137. 

50. 

406, 

139. 

36,  37. 

423, 

269. 

45. 

424, 

271. 

40,  47. 

428, 

273. 

37. 

430, 

279. 

45,  46. 

442, 

315. 

39. 

p.  442,  Chap.  315,  §  3.     39. 


505, 


552, 


359.    22,  35,  658. 

§  1.     69,  70. 

§  2.     69. 

§  4.     71. 

§  5.     70. 

§6.     70. 

§7.     71. 

§  10.     71. 

§  15.     71,  479. 

23,  25,  153,  175,  190, 
568,  572,  576,  580, 
584,  585,  588,  590. 

§1.     23,30,33. 

§  2.     374. 

§  3.     192,  370,  480. 

§  4.     21,  27. 

§5.     21. 

§  7.     381,  455. 


373. 


Vol.  25. 


78,  Chap 

.  58.    45,  46. 

88, 

129,  §  1.    47. 

151, 

201,  §  1.     56. 

357, 

728.    22,  35,  565. 

357, 

729.     561. 

§  1.     560. 

388, 

789,  §  1.    42. 

§  2.     32. 

§  3.     32. 

§  7.    32. 

389, 

792.     42. 

§  2.     32. 

392, 

817,  §  1.     41. 

433, 

866.     23,  30,  576,  653. 

§  2.    374. 

§  3.     376. 

438, 

869.     42, 43. 

§  3.    32. 

§4.    32. 

§  8.     32. 

443, 

891,  §  1.    47. 

655, 

113.     35,36,52,56,593. 

§  5.     602. 

§6.     605,607,610,619 

671, 

168.     32,  38,  39. 

676, 

180.     35,  47,  50,  56. 

§  21.    296. 

§  22.     567. 

690, 

205.     38. 

60:-!, 

236.     590,  594,  609,  658. 

783, 

333,  §  1.     53. 

$  2.     53,  55. 

855, 

382.     321. 

§  10.     536. 

lxxx 


CITATIONS. 


IT.  S.  EQUITY   RULES. 

(See  pages  661-636.) 


Page. 

Tage. 

Page. 

2. 

163,  280. 

32. 

172,    179,    188, 

203, 

63. 

226. 

3. 

282. 

215. 

04. 

227. 

4. 

280,  282,  505,  560. 

33. 

204,  210. 

65. 

227. 

5. 

280,  202. 

34. 

182,  185,  186. 

66. 

204,  231,  436. 

6. 

282,  286,  202. 

35. 

206,  210,  236. 

67. 

117,    419,    421,   422 

7. 

148,  150,  510. 

36. 

173,  174,  208. 

436. 

8. 

476,    500,    502,    505, 

37. 

173,  174,  208. 

68. 

424. 

508,  510. 

38. 

184,    204,    205, 

231, 

69. 

420,  422,  436. 

9. 

510. 

435,  436. 

70. 

416,  419. 

10. 

505. 

39. 

172,    178,    190, 

203, 

72. 

253. 

11. 

150. 

211,  219,  222. 

73. 

454,  476. 

12. 

148,  149,  150,  164. 

40 

136. 

74. 

455. 

13. 

152. 

41. 

135,  136,  138,  217. 

75. 

455,  458. 

14. 

150. 

42. 

135. 

76. 

461. 

15. 

151,  509. 

43. 

146. 

77. 

457,  460,  461. 

16. 

151,  152. 

44. 

178,  219,  222. 

78. 

460. 

17. 

16.'}. 

45. 

230,  236. 

79. 

384,  458. 

18. 

164,165,168,179,201, 

40. 

241. 

80. 

460. 

203,  221,  397. 

47. 

93. 

81. 

460. 

19. 

165,  167,  397. 

48. 

91. 

82. 

455,  461,  462,  502. 

20. 

112. 

49. 

87. 

83. 

462. 

21. 

112,    127,    133,    134, 

50. 

103. 

84. 

463. 

135,  136,  328,  377, 

51. 

85,  101. 

85. 

513. 

391,  415. 

52. 

106,  196,  445. 

86. 

474. 

22. 

94,  127. 

53. 

445. 

87. 

65,  78,  79. 

23. 

140. 

55. 

281,  326,  329. 

88. 

514,  516. 

24. 

141,  176. 

56. 

151,  263,  268. 

90. 

512. 

26. 

114,  115,  177,  217. 

57. 

273,  277. 

91. 

223,  406. 

27. 

115,217. 

58. 

262,  264,  272. 

92. 

473,  476,  500. 

28. 

235. 

50. 

224. 

93. 

607. 

29. 

204,  210,  235,  270. 

60. 

242. 

94. 

128,  142,  299. 

30. 

235. 

61. 

215,  225. 

31. 

183,  196,  202. 

62. 

222. 

U.  S.  SUPREME   COURT  RULES. 

(See  pages  687-704.) 


Page. 

Page. 

Page. 

3. 

520. 

15. 

601. 

24. 

484. 

5. 

148,  153,  602 

16. 

622. 

26. 

619,620. 

6. 

279,  616,  617,  622. 

17. 

622. 

27. 

619.      • 

8. 

603,  697,  608. 

18. 

622. 

28. 

617. 

9. 

608,  609,  610. 

19. 

620. 

29. 

606. 

10. 

484, 502,  610,  619. 

20. 

619, 

622. 

31. 

610. 

11. 

608. 

21. 

621, 

622. 

32 

600. 

13. 

395. 

22. 

622. 

33. 

608. 

14. 

610. 

23. 

624. 

34. 

548,  549,  607 

FEDERAL  EQUITY  PRACTICE. 


CHAPTER   I. 

JURISDICTION. 


§  1.  Equitable  Jurisdiction  in  General.  —  Equity  is  that  system 
of  jurisprudence  which  was  administered  by  the  High  Court  of 
Chancery  of  England  in  the  exercise  of  its  extraordinary  juris- 
diction,1 and  which  has  been  amplified  and  extended  by  the  more 
modern  decisions  of  the  English  and  American  courts.  It  owed 
its  origin  to  a  desire  upon  the  part  of  the  English  sovereigns 
and  their  chancellors  to  supplement  the  deficiencies  and  soften 
the  rigors  of  the  common  law  ;  and  whereas  the  well-springs  of 
this  were  such  of  the  customs  of  the  German  tribes  as  had  been 
brought  with  them  from  their  Fatherland  by  the  Jutes  and 
Angles:2  those  of  that,  which  was  administered  at  first  ex- 
clusively  by  ecclesiastics,  are  in  the  canon,  which  was  itself 
derived  from  the  greatest  monument  of  the  genius  of  ancient 
Rome,  the  civil  law.3  Since  the  time  of  Nottingham,  before 
whom  each  succeeding  chancellor  had  decided  the  cases  brought 
before  him  in  accordance  with  his  own  notions  of  what  was 
proper,  or  in  the  language  of  Selden,4  measured  justice  out  by 
the  length  of  his  foot,  the  same  respect  has  been  paid  to  pre- 
cedent in  the  courts  of  equity  and  common  law.  But  the  rules 
regulating  the  remedies  administered  by  the  former  are  much 
more  plastic.  And  even  at  the  present  time  cases  often  occur 
where  judges  sitting  at  equity,  with  the  approval  and  assistance 
of  the  profession,  invent  and  adopt  new  remedies  suited  to  a 
state  of  society  and  of  civilization  unknown  and  not  anticipated 
when   the  procedure  in  chancery  first  assumed  the  form  that 

§  1.  l  Miiford's  Pleadings;  Bispham's  8  Langdell's  Equity  Pleading,  Intro- 

Equity,  §  1.  duction. 

2  Holmes'  Com.  Law.  *  Selden's  Table  Talk,  Title  Equity. 

1 


2  JURISDICTION.  [CHAP.  I. 

it  still  substantially  retains.5  The  chronicles  of  the  growth 
and  development  of  equity  abound  with  names  well  known  to 
the  students,  as  well  of  general  history  as  of  jurisprudence. 
Among  them  Wolsey,  More,  Bacon,  Clarendon,  Somers,  and 
Erskine  are  the  most  familiar  to  the  former,  while  the  members 
of  the  profession  look  back  with  especial  admiration  upon  the 
careers  of  Nottingham,  Hardwicke,  Eldon,  Westbury,  Kent, 
Story,  and  Taney.  Although  originally  no  one  could  seek  their 
aid  who  was  not  denied  justice  by  the  courts  of  common  law  ; 
yet  after  he  had  once  shown  a  title  to  their  assistance,  courts  of 
equity  would  almost  always  give  a  suitor  complete  relief  in  the 
matter  about  which  he  complained.6  And  now  that  since  the  time 
of  Mansfield  the  courts  of  common  law  have,  abandoning  their 
former  jealousy,  in  many  instances  of  their  own  accord  as  well  as 
under  the  compulsion  of  statutes,  accepted  doctrines  first  created 
by  courts  of  equity,7  the  latter  have  not  felt  obliged  to  relin- 
quish the  jurisdiction  which  they  formerly  acquired.8  One  of  the 
marked  characteristics  which  distinguish  equity  from  the  common 
law,  is  that,  while  the  latter,  as  a  general  rule,  acts  against  and 
exercises  control  over  property  alone  ;  has  but  a  very  limited 
and  merely  incidental  power,  mostly  borrowed  from  chancery, 
to  enforce  obedience  to  a  personal  command,  its  procedure  being 
founded  upon  the  theory  that  the  parties  to  an  action  owe  no 
obedience  to  the  court;9  and  is  consequently  restricted  in  its 
operation  when  the  property  which  is  the  subject  of  a  contention 
is  beyond  the  reach  of  its  process :  equity  acts  directly  against 
and  exercises  complete  control  over  persons,  and  does  not  lose 
jurisdiction  when  the  parties  are  subject  to  its  process,  because 
the  property  over  which  it  thereby  assumes  control  is  beyond 
the  territory  under  those  laws  whence  its  own  power  is 
derived.10 

5  Kennedy  v.  St.  Paul  &  Pacific  Rail-  9  Langdell's  Eq.  PI.  §  40. 

road  Company,  2  Dillon,  448 ;   Wallace  10  Archer  o.  Preston,  1  Eq.   Cas.  Ab. 

v.  Loomis,  97  U.  S.  14G.  .133,  pl.  3,  cited  and  followed  in  Arglasse 

6  1  Fonblanque's  Equity,  b.  i.  chap.  i.  v.  Muschamp,  1  Vernon,  75 ;  s.  c  1 
§  3,  note  (/);  Motteux  v.  The  London  Vernon,  135;  Penn  v.  Lord  Baltimore, 
Assurance  Co.,  1  Atk.  545 ;  Tayloe  v.  1  Vesey  Sr.  444 ;  Massie  v.  Watts,  6 
The  Merchants'  Fire  Ins.  Co.,  9  How.  Cranch,  148 ;  Muller  v.  Dows,  94  U.  S. 
390,  405.  444,  at  pages  449-450.     The  authorities 

7  Moses  v.  Macferlan,  2  Burrow,  1005;  are  well  collected  in  a  learned  opinion  by 
Dickcrson  v.  Colgrove,  100  U.  S.  578.  Judge,  subsequently  Chief  Judge,  Henry 

8  Putnam  v.  New  Albany,  4  Bissell,  E.  Davies,  in  Gardner  v.  Ogden,  22  N.  Y. 
365.  327. 


§  2.]      SUEVEY   OF   THE   JURISDICTION    OF   COURTS    OF    EQUITY.  3 

§  2.    General   Survey  of  the  Jurisdiction  of  Courts   of  Equity. 

The  jurisdiction  of  courts  of  equity  is  exercised  either  for  the 
protection  of  rights  which  the  common  law  does  not  recognize ; 
or  for  the  prevention  or  redress  of  wrongs  for  which  the  common 
law  affords  no  adequate  remedy.  A  full  consideration  of  this 
topic  is  beyond  the  scope  of  this  treatise.  The  following  sum- 
mary, although  imperfect,  may  occasionally  assist  the  reader. 
The  rights  which  a  court  of  equity  alone  respects  are:  the  rights 
of  beneficiaries  under  a  trust,1  either  express  or  implied,  —  which 
latter  term  includes  those  which  are  resulting2  or  constructive:3 
the  right  to  be  relieved  from  an  obligation  which  has  been  en- 
tered into,  or  to  recover  a  right  which  has  been  lost  by  accident, 
—  which  expression  is  said  to  include  the  cases  where  one  has 
become  subject  to  a  penalty  or  forfeiture,4  or  has  lost  a  document 
the  possession  of  which  was  essential  to  his  success  in  a  legal 
action,5  and  is  also  often  used  to  bolster  up  a  weak  equity  of 
another  kind  —  ; 6  by  mistake,  —  which  must  be  mutual,  material, 
and  not  caused  by  the  negligence  of  the  party  seeking  relief,"  and 
which,  if  solely  of  a  point  of  law,  will  very  rarely  release  one 
from  his  contract  obligations  —  ;8  by  fraud,  whether  actual9  or 
constuctive ; 10  or  by  duress:11  and  the  rights  of  those  who  are 
justly  entitled  to  compel  election  under  a  will,  or  an  adjustment  of 

§  2.   i  Sturt  v.  Mellish,  2  Atk.  610 ;  page    286 ;      Stephenson    v.    Wilson,    2 

New  Orleans  v.  Morris,  105  U.  S.  600.  Vern.  325. 

2  Dyer  v.  Dyer,  2  Cox  Eq.  Cas.  02;  8  Hunt  v.  Rousmanier's  Admrs.  8 
Hoxie  v.  Carr,  1  Sumner,  187.  Wheaton,  174,  215;   s.  c.  1  Peters,  1,  14- 

3  National  Bank  v.  Insurance  Co.,  Snell  v.  Insurance  Company,  98*  U.  s! 
104  U.  S.  54,  64-71.  85 ;    Pitcher    v.    Hennessey,    48    N.    Y. 

4  1  Spence  Eq.  629,  630;  Bispham's  415;  Adair  v.  Brimmer,  74  N.  Y.  539; 
Eq.  §  178.  Mortgages  are  included  Relief  Fire  Insurance  Co.  v.  Shaw  94 
under  this  head,  Mitford's  PI.  118-276;  u.  S.  574;  Allen  v.  Galloway,  30  Fed. 
Story's  Eq.  Jur.  §  89.  R.  4G6;   Cooper  v.  Phibbs,  L.   R.  2  H. 

5  Savannah  National  Bank  v.  Haskins,  L.  170 ;  Elliott  v.  Sacket,  108  U.  S.  132 
101  Mass.  370;    Donaldson  v.  Williams,  142. 

50    Mo.    408;    Story's   Eq.    Jur.   §84;  9  Cobbeltiom  v.  William,  Chan.  Cal. 

Bispham's  Eq.  §§  176,  177.  II.;  Rtonehouse  v.  Starishaw  Chan.  Cal 

6  Story's  Eq.  Jur.  §§  90-09  ;  Bispham's  XXIX.;   Bief  v.  Dyer,  Chan.   Cal.  XI.; 
Eq.  §§  182,  183.     Cases  where  this  head  Bacon  v.  Bronson,  7  Johns.  Ch.  (N.  Y.) 
of  equity  is  invoked  for  relief  against  a  194;  Jones  v.  Bolles,  9  Wall.  364. 
defective  execution  of  a  power  are  in-  10  Mackreth  v.  Fox,  4  Bro.  P.  C.  258; 
eluded  here.  Ex  parte  Lacey,  6  Ves.  625 ;  Villa  v.  Rodri- 

7  Bispham's  Eq.  §  191 ;  Whittemore  v.  guez,  12  Wall.  323,  339. 

Farrington,  76  N.  Y.  452 ;    McFerran   v.  "    "  Nicholls   v.   NichoIIs,   1    Atk.   409 ; 

Taylor,  3  Cranch,  281;  Elliott  v.  Sack-  Gould  v.  Okeden,  4  Bro.  P.  C.  198;  Ba- 

ett,  108  U.  S.  132;   Duke  of  Beaufort  v.  ker  v.  Morton,  12  Wall.  150. 
Neeld,    12    Clark    &    Finnelly,    248,    at 


4  JURISDICTION.  [CHAP.  I. 

liabilities,12  —  under  which  terra  are  included  set-off,13  contribu- 
tion,14 exoneration,15  and  marshalling  of  securities.16  The  cases 
where  the  jurisdiction  of  equity  is  exercised  merely  for  the  sake 
of  the  remedy  are  where  its  interposition  is  needed  to  assist  in 
obtaining  a  judgment  at  law  by  compelling  a  discovery  from  a 
defendant,17  or  the  perpetuation  of  the  testimony  of  witnesses,18 
or  their  examination  abroad,19  when  it  is  feared  that,  on  account 
of  death,  illness,  or  absence,  they  cannot  be  obliged  to  attend  upon 
the  trial ;  to  satisfy  a  judgment  out  of  property  of  a  debtor  which 
cannot  be  reached  by  an  execution  ; 20  to  prevent  a  threatened 
breach  of  a  right,21  or  compel  the  performance  of  a  duty,22  the 
commission  or  omission  of  which,  respectively,  would  inflict  such 
an  irreparable  injury  upon  a  person,  that  a  judgment  for 
damages,  or  the  cumbrous  legal  process  of  ejectment,  replevin, 
detinue,  or  account  render,  would  be  no  adequate  remedy  for 
the  loss  thereby  occasioned  ;  to  prevent  a  needless  multiplicity 
of  suits  ;23  and  to  compel  the  cancellation  or  execution  of  instru- 
ments,24 the  existence  or  want  of  which  is  a  cloud  upon,  or  an 
apparent  flaw  in  a  person's  title,  or  would  render  it  difficult  for 
him  to  resist  an  unjust  demand,  or  to  dispose  of  property  by  sale. 
§  3.  Constitutional  Provisions  affecting  the  Jurisdiction  of  the 
Federal  Courts. —  The  Constitution  of  the  United  States  provides 
that,  "  The  judicial  power  "  of  the  United  States  "  shall  extend  to 

12  Arnold  i\  Kempstead,  1  Ambler,  4G6;  Dursley  v.  Berkeley,  6  Ves.  251.  See 
Jones  v.  Collier,  2  Ambler,  730 ;  Herbert     U.  S.  Rev.  Stat.  §§  863-867. 

v.  Wren,  7  Cranch,  370,  378.  w  Moodalay  v.  Morton,  1  Bro.  C.C.  409. 

13  Chapman  v.  Derby,  2  Vera.  117;  20  Angell  v.  Draper,  1  Vera.  399 ;  Scot- 
Lord  Lanesborough  v.  Jones,  1  P.  Wins,  tish  American  Mortgage  Co.  v.  Follans- 
325  ;    2   Story's    Equity    Jurisprudence,  bee,  14  Fed.  R.  125. 

§  1433;  Story,  J.,  in  Greene  v.  Darling,  21  Robinson  v.  Lord  Byron,  1  Bro.  C.C. 

5  Mason,  201,  207-213.  588 :  Osborn  v.  Bank  of  the  United  States, 

14  Layer  v.  Nelson,  1  Vera.  456  ;  How-     9  Wheat.  738. 

ards  v.  Selden,  5  Federal  Reporter,  465,  22  Stribley   v.  Hawkie,    3    Atk.   275; 

473.  Huguenin  v.  Baseley,  15  Ves.  180;  Hunt 

15  Galton  v.  Hancock,  2  Atk.  425;  v.  Rousmanier's  Admrs.,  1  Pet.  1;  Wil- 
Walker  v.   Jackson,  2  Atk.   625 ;  Bank  lard  v.  Tayloe,  8  Wall.  557. 

of  U.  S.  v.  Beverly,  1  How.  134,  151.  23  Freeman    v.    Pontrell,    Chan.    Cal. 

is  Aldrich   v.    Cooper,    8    Ves.    394;  XIII.;  Earl  of  Bath  t\   Sherwin,  4  Bro. 

Trimmer  v.  Bayne,  9  Ves.  209 ;  1  Story's  P.  C.  373;    Woods  v.  Monroe,  17  Mich. 

Eq.  Jur.  §  033.  238  ;  Cummings  v.  National  Bank,  101  U. 

17  Finch   v.   Finch,   2   Ves.    Sr.    492;  S.  153 ;  Dodge  v.  Briggs,  27  Fed.  R.  161. 
Moodalay  v.  Morton,  1  Bro.  C.  C.  469 ;         24  Pierce  v.  Webb  &  Stalker,  note  to 

Brown    v.    Swann,    10    Pet.    497,    500:  Ryan    v.    Mackmath,  3  Bro.    C.  C.  15; 

Heath  v.  Erie  Ry.,  9  Blatchf.  316.  Peake  v.  Highfield,  1  Russ.  559,  and  cases 

ig  Earl  of  Suffolk  u.  Green,  1  Atk.  450 ;  cited  ;  Bunce  v.  Gallagher,  5  Blatchf.  C.C. 

Pearson  v.  Ward,  1  Cox  Eq.  177;  Lord  481;  Boyce  v.  Grundy,  3  Pet.  210. 


§  4.]   DISTINCTION  BETWEEN  LAW  AND  EQUITY  IN  FEDEEAL  COURTS.    5 

all  Cases  in  Law  and  Equity,  arising  under  this  Constitution,  the 
Laws  of  the  United  States,  and  Treaties  made,  or  which  shall  be 
made,  under  their  Authority  ;  to  all  Cases  affecting  Ambassadors, 
other  public  Ministers  and  Consuls ;  to  all  Cases  of  Admiralty 
and  maritime  Jurisdiction  ;  to  Controversies  to  which  the  United 
States  shall  be  a  Party ;  to  Controversies  between  two  or  more 
States  ;  between  a  State  and  Citizens  of  another  State  ;  between 
Citizens  of  different  States ;  between  Citizens  of  the  same  State 
claiming  Lands  under  Grants  of  different  States  ;  and  between  a 
State,  or  the  Citizens  thereof,  and  foreign  States,  Citizens,  or 
Subjects."1  But  "  the  Judicial  power  of  the  United  States  shall 
not  be  construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
Citizens  of  another  State,  or  by  Citizens  or  Subjects  of  any 
Foreign  State."  2  "  In  all  cases  affecting  Ambassadors,  other 
public  Ministers,  and  Consuls,  and  those  in  which  a  State  shall 
be  Party,  the  Supreme  Court  shall  have  original  Jurisdiction,"  ; 
although  "  such  inferior  Courts  as  the  Congress  may  from  time 
to  time  ordain  and  establish " 4  may  also  have  original  juris- 
diction thereof.5  "  In  all  the  other  Cases  before  mentioned,  the 
Supreme  Court  shall  have  appellate  Jurisdiction,  both  as  to 
Law  and  Fact,  with  such  Exceptions  and  under  such  Regula- 
tions as  the  Congress  shall  make."6  In  no  other  cases  can  it 
have  original  jurisdiction.7 

§  4.  The  Distinction  between  Law  and  Equity  in  the  Federal 
Courts.  —  The  fact  that  those  who  framed  the  Constitution 
thought  it  necessary  to  separately  mention  law  and  equity,  when 
blocking  out  the  jurisdiction  of  the  Federal  courts,  has  caused 
many  judges  to  think,  and  even  to  say  in  their  opinions,  that  it 
was  thereby  evidently  intended  that  these  branches  of  the  law 
should   always  be   kept  apart.1     The  better  opinion,   however, 

§  3.   l  The  Constitution,  art.  iii.  §  2.  7  Marbury  v.  Madison,  1  Cranch,  137 ; 

2  Eleventh  Amendment  to  the  Consti-  Ex  parte  Vallandigham,  1  Wall.  24:). 
tution.  §  4.   1  Parsons  o.  Bedford,  3  Pet.  433  ; 

3  The  Constitution,  art.  iii.  §  2.  Bennett   v.  Butterworth,   11    How.   669, 

4  lb.  §  1.  674;  Hippy.  Babin,  1'.'  I  low.  271,  at  page 
6  Ames  v.  Kansas,  111  U.  S.  449;  Bors     277  ;  Fenn  v.  Holme,  21  How.  481,  486; 

v.  Preston,  111  U.  S.  252 ;  United  States  v.  Costs  in  Civil  Cases,  1  Blatcbf.  C  C  652, 

Ravara,  2  Dallas,  297  ;  Gittings  v.  Craw-  654 ;  Butler  v.  Young,  1  Flippin,  276,  278; 

ford,  Taney's  Decisions,  1 ;    St.  Luke's  Meade  v.  Beale,  Taney,  339,  at  page  361 ; 

Hospital  v.  Barclay,  3  Blatcbf.  259  ;  Gra-  Thompson  v.  Railroad  Companies,  6  Wall, 

ham  i'.  Stucken,  4  Blatchf.  50.  134 ;  Reubens  v.  Joel,  13  N.  Y.  488,  at 

c  The  Constitution,  art.  iii.  §  2.  page  497. 


6  JURISDICTION.  [CHAP.  I. 

seems  to  be  that  this  distinction  between  law  and  equity  is 
enforced  by  the  Constitution  only  to  the  extent  to  which  the 
Seventh  Amendment  forbids  any  infringement  of  the  right  of 
trial  by  jury,  as  fixed  by  the  common  law.2  Yet,  although  a  great 
number  of  the  States  of  the  American  Union,  and  even  England 
itself  has  fused  together  the  two  systems  ;  in  the  courts  of  the 
United  States,  while  the  same  judges  have  jurisdiction  in  each, 
the  common  law  and  equity  are  still  as  distinct  as  they  were  in 
the  time  of  Coke  and  Bacon. 

§  5.  General  Rules  affecting  the  Jurisdiction  in  Equity  of  the 
Federal  Courts.  —  The  jurisdiction  in  equity  of  the  Federal  courts 
is,  subject  to  the  limitations  of  the  Constitution,  substantially 
the  same  as  that  of  the  English  Court  of  Chancery  ; *  although 
they  do  not  exercise  those  powers  not  judicial  which  were  exer- 
cised over  the  persons  and  estates  of  infants,  idiots,  lunatics,  and 
charities  by  the  Lord  Chancellor,  as  the  representative  of  the 
sovereign  and  by  virtue  of  the  latter's  prerogative  as  parens 
patriae?  It  was  said  by  Chief  Justice  Taney,  that  the  Consti- 
tution of  the  United  States  grants  only  judicial  power  at  law 
and  in  equity  to  its  courts ;  that  is,  powers  at  that  time  tmcler- 
stood  and  exercised  as  judicial,  in  the  courts  of  common  law  and 
equity  in  England.  "  And  it  must  be  construed  according  to  the 
meaning  which  the  words  used  conveyed  at  the  time  of  its 
adoption  ;  and  the  grant  of  power  cannot  be  enlarged  by  resort- 
ing to  a  jurisdiction  which  the  Court  of  Chancery  in  England, 
centuries  ago,  may  have  claimed  as  a  part  of  its  ordinary  judicial 
power,  but  which  had  been  abandoned  and  repudiated  as 
untenable  on  that  ground,  by  the  court  itself,  long  before  the 
Constitution  was  adopted."3  The  same  judge  also  said  that 
it  was  undoubtedly  true,  in  regard  to  equitable  rights,  that  the 
power  of  the  courts  of  chancery  of  the  United  States,  is,  under 
the  Constitution,  to  be  regulated  by  the  law  of  the  English 
chancery;  that  is  to  say,  the  distinction  between  law  and  equity 
as  recognized  in  the  jurisprudence  of  England  is  to  be  observed 

2  Mr.  Justice  Matthews  in  Root  v.  Rail-  v.  Morey,  2  Story,  555,  at  page  567  ;  Root 

way  Co.,  105  U.  S.  189,  206.     Compare  v.  Railway  Company,  105  U.  S.  189,  at 

Ex  parte  Boyd,  105  U.  S.  647.  page  207. 

§  5.   !  Robinson  v.  Campbell,  3  Wheat.  2  Fontain  v.  Ravenel,  17  How.  369,  at 

212,   at   page  221 ;   Fenn   v.   Holme,  21  page  391 ;  Loring  v.  Marsh,  2  Clifford, 

How.  481,  at  page  484;  Meade  v.  Beale,  469,  at  page  492. 

Taney,  339,  at  page  361 ;  Gordon  v.  Ho-  3  Chief  Justice  Taney  in   Fontain  v. 

bart,  2  Sumner,  401,  at  page  405 ;  Fletcher  Ravenel,  17  How.  369,  394,  395. 


§  5.]    DISTINCTION  BETWEEN  LAW  AND  EQUITY  IN  FEDEEAL  COURTS.    7 

in  the  courts  of  the  United  States,  in  administering  the  remedy 
for  an  existing  right.     The  rule  applies  to  the  remed}'  and  not 
the  right ;  and  it  does  not  follow  that  every  right  given  by  the 
English  law,  and  which  at  the  time  the  Constitution  was  adopted 
might  have  been  enforced  in  the  Court  of  Chancery,  can  also  be 
enforced  in  a  court  of  the   United  States ;    the  right  must  be 
given  by  the  law  of  the  State  or  of  the  United  States.4     The 
revised  statutes  of  the  United  States  provide  that :    "  Suits  in 
equity  shall   not  be   sustained   in   either  of  the  courts  of   the 
United    States    in    any    case    where    a    plain,    adequate,    and 
complete  remedy  may  be  had  at  law."5     The  Supreme  Court 
has  construed  this  statute  substantially  as  follows :   The  effect 
of  the  provision  of  the  Judiciary  Act  is  that  whenever  a  court 
of  law  is   competent   to    take   cognizance  of  a   right,  and    has 
power  to   proceed  to  a  judgment  which    affords  a  plain,   ade- 
quate,   and   complete    remedy,   without  the  aid  of  a   court  of 
equity,  the  plaintiff  must  proceed  at  law,  because  the  defendant 
has  a  constitutional  right  to  a  trial  by  jury.6     "  This  enactment 
certainly  means  something ;  and  if  only  declaratory  of  what  was 
always  the  law  it  must,  at  least,  have  been  intended  to  emphasize 
the   rule,  and  to  impress  it  upon  the  attention  of  the  courts."7 
"  Accordingly,  a  suit  in  equity  to  enforce  a  legal  right  can  be 
brought   only    when    the    court   can   give    more    complete   and 
effectual  relief  in  kind  or  in  degree  on  the  equity  side   than  on 
the  common  law  side ;  as,  for  instance,  by  compelling  a  specific 
performance,  or  the  removal  of  a  cloud  on  the  title  to  real  estate; 
or  preventing  an  injury  for  which  damages  are  not  recoverable 
at   law,  as   in  Watson   v.   Sutherland,  5  Wall.    74  ;   or  where 
an    agreement   procured    by   fraud   is   of  a   continuing    nature, 
and    its    rescission    will    prevent    a    multiplicity    of    suits." 8 
"  By   inadequacy    of    the   remedy   at   law   is   here    meant,    not 
that   it   fails    to   produce    the    money,  —  that    is    a   very   usual 
result  in  the  use  of  all  remedies,  —  but  that  in  its  nature  or 
character   it   is   not   fitted   or  adapted   to   the   end   in  view." 9 

4  Meade  v.  Beale,  Taney,  339,  361.  »  N.   Y.   Guaranty    Co.    v.    Memphis 

6  U.  S.  R.  S.  §  723.  Water   Co.,    107    U.    S.    205,    214  j   per 

6  Hipp  v.  Babin,  19  How.  271 ;  Insur-  Bradley,  J. 

ance  Co.  v.  Bailey,  13  Wall.  616,  621  ;  «  Buzard  v.  Houston,  119  U.  S.  347, 

Grand  Chute  v.  Winegar,  15  Wall.  373,  351,  352  ;  per  Gray,  J. 

375;  Lewis  v.  Cocks,  23  Wall.  466,  470  ;         9  Thompson  v.  Allen  County,  115  U.  S. 

Root  v.  Railway  Co.  105  U.  S.  189,  212 ;  550,  554  ;  per  Miller,  J. 

Killian  v.  Ebbinghus,  110  U.  S.  568,  573. 


8  JUEISDICTION.  [CHAP.  I. 

There  may  consequently  be  cases  over  which  the  English 
courts  of  chancery  would  have  taken  jurisdiction,  which 
are  not  cognizable  by  the  Federal  courts  when  sitting  at 
equity.10 

"  The  adequate  remedy  at  law  which  is  the  test  of  equitable 
jurisdiction  in  these  courts,  is  that  which  existed  when  the  Ju- 
diciary Act  of  1789  was  adopted,  unless  subsequently  changed 
by  Congress."  u  Whether  the  equitable  jurisdiction  is  lost  when 
a  statute  of  the  United  States  gives  the  same  or  adequate  relief 
at  law,  —  as,  for  example,  in  the  case  of  discovery,  —  has  not 
yet  been  settled.12  If  a  statute  of  the  United  States  creates  a 
new  right,  the  remedy  will  be  in  equity  if  the  relief  thereby 
afforded  is  in  analogy  with  a  species  of  relief  ordinarily  given  by 
equity  alone.13 

§  6.  State  Statutes  cannot  impair  the  Jurisdiction  nor  regulate 
the  Practice  of  Federal  Courts  of  Equity.  —  No  State  statute  giving 
one  of  its  courts  —  for  example,  a  court  of  probate  —  exclusive 
jurisdiction  of  a  certain  class  of  litigation  can  impair  the  juris- 
diction of  the  Federal  courts.1  No  State  statute  enlarging  the 
powers  of  courts  of  common  law  can  impair  the  jurisdiction  of 
a  Federal  court  of  equity.2  No  State  statute  diminishing  or 
destroying  an  equitable  remed}%  or  in  any  way  regulating  the 
practice  in  courts  of  equity,  can  have  any  effect  upon  the  juris- 
diction or  practice  of  the  Federal  courts.3  Such  are  statutes 
requiring  a  mortgagor  to  tender  the  debt  secured  by  his  mort- 
gage before  filing  a  bill  to  redeem  the  mortgaged  premises  ;4 
requiring  a  bill  to  foreclose  a  mortgage  given  to  secure  a  judg- 
ment to  show  that  execution  has  been  issued  under  the  judgment 

M  Buzard  v.  Houston,  119  U.  S.  347,  v.  Little,  101  U.  S.  216 ;  Manufacturing 

352.  Co.  v.  Bradley,  105  U.  S.  175. 

11  McConihay  v.  Wright,  121  U.  S.  §  6.  i  Suydam  v.  Broadnax,  14  Pet.  67  ; 
201,  206;  per  Matthews,  J.  Hull  v.  Dills,  19  Fed.  R.  657. 

12  Compare  Vaughan  v.  Central  Pad-  2  McConihay  v.  Wright,  121  U.  S.  201, 
fie  R.  R.  Co.,  4  Sawyer,  280 ;  Pratt  v.  206 ;  and  cases  cited. 

Northam,  5  Mason,  95;    Peters  v.  Pre-         3  Boyle    v.    Zacharie,    6    Pet.    648 

vost,    1    Paine,   64;    Home   Ins.   Co    v.  Bein  v.  Heath,  12  How.  (D.  S.)  168,  179 

Stanchfield,  1  Dill.  424  ;  Markey  v.  Mut.  Noonan  v.  Lee,  2  Black,  499, 509 ;  Thomp 

Ben.  Life  Ins.  Co.,  6  Ins.  L.J.  537  ;  Heath  son  ».  Railroad  Companies,  6  Wall.  134 

».   Erie   Railroad   Co.,  9  Blatchf.   316;  Cowles  v.  Mercer  County,  7  Wall.  118 

Drexel  v.  Berney,  14  Fed.  R.  268 ;  Post  Payne   v.  Hook,  7  Wall.  425 ;  Railway 

v.  Toledo,  C,  &c.  R.  R.  Co.,  144  Mass.  Company    v.    Whitton's    Administrator, 

341 ;  4  New  England  Rep.  221.  13  Wall.   270,   285  ;   Smith   v.  Railroad 

13  Edgell  v.   Haywood,   3   Atk.   354 ;  Company,  99  U.  S.  398. 

Hornor  v.  Henning,  93  U.  S.  228 ;  Terry         4  Gordon  v.  Hobart,  2  Sumner,  401. 


§  7.]     EFFECT  OF  STATE  STATUTES  ON  FEDEEAL  COURTS  OF  EQUITY.      9 

and  returned  unsatisfied;5  requiring  leave  to  be  obtained  from  a 
State  court  before  a  suit  can  be  brought  to  enforce  a  judgment 
therein  entered,6  or  the  presentation  of  a  claim  to  the  comp- 
troller before  a  suit  can  be  brought  against  a  city  ; 7  requiring  a 
bond  to  be  given  before  an  injunction  can  be  granted  ;8  or  regu- 
lating the  form  of  the  security  then  required  or  the  proceedings 
to  enforce  the  same  ;9  authorizing  persons  to  agree  upon  a  state- 
ment of  facts,  and  to  stipulate  that  the  court  take  jurisdiction 
to  try  a  cause  and  render  a  decree  without  pleadings;10  and,  at 
least  when  the  suit  is  brought  in  a  district  not  including  the 
State  that  passed  the  statute,  one  that  permits  a  debtor  to  file 
a  bill  to  compel  the  return  or  cancellation  of  securities  for  a 
usurious  debt,  without  payment  or  the  offer  of  payment  of  the 
amount  borrowed  with  lawful  interest.11 

§  7.  State  Laws  creating  new  Rights  are  enforced  by  Federal 
Courts  of  Equity.  —  If,  however,  the  customary1  or  statute2  law 
of  a  State  has  created  a  new  right,  the  Federal  courts  will  en- 
force the  same  at  law  or  equity,  if  it  falls  within  the  remedies 
authorized  by  either  branch  of  their  jurisdiction.  Such  are 
statutes  giving  a  mortgagor  or  his  judgment  creditors  a  certain 
time  within  which  to  redeem  land  after  a  foreclosure  sale;3  au- 
thorizing a  suit  to  set  aside  the  probate  of  a  will,  or  a  will  itself, 
for  fraud;4  authorizing  a  person  in  possession  of  land,  and  un- 
molested,5 or  even  one  out  of  possession,6  to  sustain  a  bill  to 
determine  and  quiet  the  title  to  the  same ;  imposing  on  stock- 
holders individual  liability  to  the  creditors  of  their  corporations  ;7 
making  an  assessment  for  opening  streets  a  lien  upon  abutting 

6  Dow  v.  Chamberlin,  5  McLean,  281.  2    Clark  v.  Smith,  13  Pet.  195;  Fitch 

6  Phelps  v.  O'Brien  County,  2  Dill  518.  v.  Creighton,  24  How.  (U.  S  )  159  ;  Brine 

7  Gamewell  Fire  Alarm  Tel.  Co.  v.  v.  Insurance  Company,  96  U.  S.  627  ; 
Mayor.,  &c,  31  Fed.  K.  312.  Mills  v.  Scott,  99  U.  S.  25 ;  Van  Norden 

8  Beini;.  Heath,  12  How.  (U.  S.)  168,  v.  Morton,  99  U.  S.  378;  Cummings  v. 
178.  National  Bank,  101  U.  S.  153,  157;  Sol- 

9  Bein  v.  Heath,  12  How.  (U.  S.)  168 ;  land  v.  Challen,  110  U.  S.  15 ;  Reynolds 
Russell  v.  Farley,  105  U.  S.  437 ;  Meyers  v.  Crawfordsville  First  National  Bank, 
v.  Block,  120  U.  S.  206,  211.  112  U.  S.  405. 

10  Nickerson  v.  Atchison,  T.,  &  Santa  8  Brine  v.  Insurance  Company,  9G  U.  S. 
Fe  R.  R.  Co.,  1  McCrary,  383.  627  ;  Orvis  v.  Powell,  98  U.  S.  176,  178 ; 

11  Matthews  v.  Warner,  6  Fed.  R.  461,  Connecticut  Mutual  Life  Insurance  Com- 
465 ;  affirmed    without   passing   on   this  pany  v.  Cushman,  108  U.  S.  51. 

point,  112  U.  S.  600.  4  Broderick's  Will,  21  Wall.  503,  519, 

§  7.   1  Neves  v.  Scott,  13  How.  (U.  S.)  520. 

268,  271  ;  Gaines  v.  Fuentes,  92  U.  S.  10,  5  Clark  v.  Smith,  13  Pet.  195. 

20;  Ellis  v.  Davis,  109  U.  S.  485;  Lorman  6  Holland  v.  Challen,  110  TJ.  S.  15. 

v.  Clarke,  2  McLean,  568,  577.  7  Borland  v.  Haven,  37  Fed.  R.  394. 


10  JUKISDICTION.  [CHAP.  I. 

lands,  which  can  be  foreclosed  by  the  city  or  its  assignee  ; 8 
authorizing  the  filing  of  a  creditor's  bill  on  the  appointment  of 
a  receiver  under  certain  conditions,  which  in  the  Federal  courts 
must  then  also  be  performed;9  authorizing  an  injunction  to  be 
granted  in  a  new  class  of  cases;10  empowering  a  guardian  with 
the  permission  of  the  State  court  to  mortgage  his  ward's  estate, 
but  not  clauses  providing  that  such  a  mortgage  can  only  be  fore- 
closed in  the  court  which  authorized  its  execution.11 

§  8.  State  Statutes  of  Limitation.  —  Federal  courts  of  equity 
usually  follow  by  analogy  State  statutes  of  limitation,1  especially 
in  foreclosure  suits2  and  suits  against  executors  and  adminis- 
trators ; 3  but,  at  least  when  their  jurisdiction  is  not  concurrent 
with  courts  at  law,4  they  do  not  consider  themselves  bound  by 
such  statutes.5  It  has  been  said  that  a  Federal  court  of  equity 
will  never  follow  a  State  statute  of  limitation  when  thereby 
manifest  wrong  and  injustice  would  be  wrought.6  A  State 
statute  of  limitation  cannot  bar  the  United  States.7  Other- 
wise, the  courts  of  the  United  States  in  actions  at  common  law 
not  founded  upon  Federal  statutes,  are  bound  by  State  statutes 
of  limitation.8  The  effect  of  such  a  statute  upon  actions  at 
common  law  to  enforce  rights  created  by  Federal  statutes,  such 
as  patents  and  copyrights,  has  been  the  subject  of  conflicting 
adjudications.9 

8  Fitch  v.  Creighton,  24  How.  (U.  S.)  U.  S.  130,  137  ;  Etting  v.  Marx's  Exeeu- 
159.  tor,  4  Fed.  R.  673. 

9  Flash  v.  Wilkerson,  22  Fed.  R.  689;  6  Fogg  v.  St.  Louis,  H.,  &  K.  R.  R.  Co., 
Fechheimer  v.  Baum,  37  Fed.  R.  167;  17  Fed.  R.  871,  873;  Story's  Eq.  Jur., 
T.  &  W.  M.  Co.  v.  Shatto,  34  Fed.  R.  380.  §  1521. 

10  Cummings    v.    National  Bank,   101  7  United  States  v.  Thompson,  98  U.  S. 

TJ.  S.  153,  157.  486 ;  United  States  v.  Nashville,  C.  &  St. 

"  Davis  v.  James,  2  Fed.  R.  618.  L.  Ry.  Co.,  118  U.  S.  120;  United  States 

§  8.  1  Wagner  v.  Baird,  7  How.  234, 258;  v.  Beebe,  127  U.  S.  338 ;  United  States  v. 

Broderick's  Will,  21  Wall.  503  ;  Godden  Insley,  130  U.  S.  263. 

v.  Kimmell,  99  U.  S.  201  ;  Meath  v.  Phil-  «  U.  S.  R.  S.  §  721 ;  McCluny  v.  Silli- 

lips  County,  108  U.  S.  553  ;  Kirby  v.  L.  man,  3  Pet.  270 ;  Amy  v.  Dubuque,  98 

S.  &  M.  S.  R.  R.,  120  U.  S.  130 ;  Pratt  v.  U.  S.  470. 

Northam,  5  Mason,  95,  112 ;  per  Story,  J.  9  That  they  do  not  affect  such  actions 

2  Cleveland  Insurance  Company  v.  was  held  in  Collins  v.  Peebles,  2  Fisher's 
Reed,  1  Biss.  180 ;  Reeves  v.  Vinacke,  Pat.  Cas.  541,  per  Swayne,  J. ;  Parker 
1  McCrary,  213,  217 ;  per  Nelson  and  v.  Hallock,  2  Fisher's  Pat.  Cas.  543,  n.  per 
Dillon,  JJ.  Grier,  J. ;  Read  v.  Miller,  2  Biss.  12,  per 

3  Pulliam  v.  Pulliam,  10  Fed.  R.  53 ;  McDonald,  J. ;  WetheriU  v.  New  Jersey 
Broderick's  Will,  21  Wall.  503.  Zinc  Co.  1  Ban.  &  A.  105,  per  McKennan, 

4  Wagner  v.  Baird,  7  How.  234,258;  J.;  Anthony  v.  Carroll,  2  Ban.  &  A.  195,  per 
Godden  v.  Kimmell,  99  U.  S.  201.  Shepley,  J. ;  Sayles  v.  L.  S.  &  M.  S.  Ry. 

e  Kirby  v.  L.   S.  &  M.  S.  R.  R.,  120    Co., 9  Fed.  R.  515, per  Harlan,  J.;  Sayles 


§  9.]  PKOPEETY   IN   THE    CUSTODY   OF   A   STATE    COUET.  11 

§  9.  Property  in  the  Custody  of  a  State  Court.  —  A  court  of  the 
United  States,  through  a  spirit  of  judicial  comity,  will  usually 
refuse  to  interfere  with  property  in  the  custody  of  a  State  court.1 
Even  if  the  custody  of  the  State  court  were  acquired  by  fraud,  a 
court  will  not  interfere  so  long  as  the  State  court  retains  its  hold 
upon  the  property.2  It  has  been  held  too  late  to  raise  this  objection 
to  the  jurisdiction  of  the  State  court  after  the  trial  of  an  action 
at  common  law.3  This  rule  did  not  prevent  the  filing  of  a  bill  in 
equity  against  an  administrator  or  an  executor  during  the  pen- 
dency of  probate  proceedings  in  a  State  court  ; 4  nor  the  filing  of  a 
bill  to  set  aside  or  stay  proceedings  upon  a  judgment  in  a  State 
court;5  nor,  under  the  Judiciary  Act  of  1875,  the  removal  to  a 
Federal  court  of  a  suit  in  equity  in  the  course  of  which  a  State 
court  had  appointed  a  receiver;6  or  had  taken  property  into  its 
possession  under  a  common-law  writ.7  Property  is  deemed  to  be 
in  the  custody  of  a  court  from  the  time  when  a  suit  or  action  seek- 
ing to  have  it  put  there  has  been  actually  begun,  either  by  levy 
under  a  writ  in  a  proceeding  in  rem,  or  by  the  filing  of  a  bill  pray- 
ing the  appointment  of  a  receiver  and  the  service  of  process  ; 8  and 
it  so  continues  until  the  cause  is  practically  terminated,  although 

v.  Dubuque  &  S.  C.  Ry.  Co.,  9  Fed.  R.  2  Attleborough  National  Bank  v.   N. 

516,  per  Dillon  and  Love,  JJ. ;  Wood  v.  W.  Manuf.  &  Car  Co.,  28  Fed.  R.  113. 
Cleveland  Rolling  Mill,  4  Fisher's  Pat.  3  Gilman  v.  Perkins,  7  Fed.  R.  887. 

Cas.  550,  per  Swayne  and  Sherman,  JJ. ;         4  Payne  v.  Hook,  7  Wall.  425  ;  Yonley 

May  v.  County  of  Fond  du  Lac,  27  Fed.  v.  Lavender,  21  Wall.  270;  Chapman  v. 

R.  691  ;  May  v.  County  of  Logan,  30  Fed.  Borer,  1  Fed.  R.  274  ;  Hull  v.  Dills,  19 

R.  250.     See  also  Schreiber  v.  Sbarpless,  Fed.  R.  657. 

17  Fed.  R.  589.     Contra,  Parker  v.  Hawk,  5  Barrow   v.   Hunton,   99    U.   S.   80  ; 

2  Fisher's  Pat.  Cas.  58,  per  Leavitt,  J. ;  Sahlgard  v.  Kennedy,  2  Fed.  R.  295. 
Parker  v.  Hall,  2  Fisher's  Pat.  Cas.  62,         6  In  re  Iowa  &  Minnesota  Construc- 

note,  per  McLean  and  Leavitt,  JJ.  ;  Rich  tion  Company,  10  Fed.  R.  401. 
v.  Ricketts,  7  Blatchf.  230,  per  Hall,  J.  ;  7  Kern  v.  Huidekoper,  103  U.  S.  485, 

Sayles  v.  O.  C.  R.  R.  Co.,  6  Saw.  31,  per  491,  492. 

Deady,  J.;  Hayden  v.  Oriental  Mills,  15         8  Taylor  v.  Carryl,  20  How.  (U.  S.) 

Fed.  R.  G05,  per  Lowell,  J.  583  ;    Heidritter    v.   Elizabeth    Oil-cloth 

§  9.   l  Hagan  v.  Lucas,  10  Pet.  400;  Company,  112  U.  S.  294;  Levi  v.  Colum- 

TayJor  v.  Carryl,  20  How.  583 ;  Peale  v.  bia  Insurance  Company,  1  Fed.  R.  206  ; 

Phipps,  14  How.  368;  Levi  v.  Columbia  Hubbard  v.  Bellew,  3  Fed.  R.  447  ;  Union 

Insurance  Company,  1  Fed.  R.  206  ;  Hub-  Mutual  Life  Insurance  Company  v.  Uni- 

bard  v.  Bellew,  3  Fed.  R.  447 ;  Union  Mu-  versity  of  Chicago,  6  Fed.  R  443  ;  Hutch- 

tual  Life  Ins.  Company  v.  University  of  inson  v.  Green,  6  Fed.  R.  833.     But  see 

Chicago,  6  Fed.  R.  443 ;  Hutchinson   v.  Dwight  v.  Central  Vermont  R.  R.  Co.,  9 

Green,  6  Fed.  R.  833,  836-839 ;  Hamilton  Fed.  R.  785 ;  Webb  v.  Vermont  Central 

v.   Chouteau,  6  Fed.  R.  339  ;  Heidritter  R.  R.  Co.,  9  Fed.  R.  793 ;  Owens  v.  Ohio 

v.  Elizabeth  Oil-cloth  Company,  112  U.  S.  Central  R.  R.  Co.,  20  Fed.  R.  10. 
294.     But  see  Dwight  v.  Central  Vermont 
R.  R.  Co.,  9  Fed.  R.  785. 


12  JURISDICTION.  LCHAP-  L 

no  formal  termination  is  absolutely  essential.9  If  the  suit  be  first 
beoun  in  a  Federal  court,  that  court  will  maintain  and  enforce 
its  right  to  the  custody  of  the  property.10  In  one  case,  where  a 
receiver  had  been  appointed,  in  a  suit  begun  in  a  State  court, 
after  a  bill  filed  in  a  Federal  court  praying  relief  concerning  the 
same  property  had  been  dismissed  by  a  decree,  the  Federal  court 
subsequently  opened  the  decree,  and  appointed  a  receiver  of  the 
property  upon  the  filing  of  a  supplemental  bill  at  the  same  term.11 
§  10.  Property  in  the  Custody  of  a  Federal  Court.  —  The  rules 
which  apply  between  State  and  Federal  courts  also  regulate  con- 
flicts as  to  jurisdiction  between  different  Federal  courts.1 

§  11.  Illustrations  of  Equitable  Jurisdiction  in  the  Federal  Courts. 
—  The  following  instances  where  Federal  courts  of  equity  have 
assumed,  and  where  they  have  refused,  to  take  jurisdiction  in 
equity,  the  subject-matter  and  the  parties  being  within  their 
jurisdiction,  although  by  no  means  exhaustive,  may  be  useful  to 
the  practitioner.  It  has  been  held  that  a  bill  in  equity  will  be 
sustained  when  filed  by  the  United  States  to  enforce  its  priority 
of  payment  out  of  a  trust  fund,1  and  to  cancel  a  land  patent,2 
or  a  patent  for  an  invention 3  which  had  been  obtained  by 
fraud,4  or  a  land  patent  which  had  been  by  a  mistake  of  law 
issued  in  violation  of  a  statute ; 5  by  a  municipal  corporation  to 
enjoin  the  sale  on  execution  of  property  held  by  it  in  trust;6 
by  a  legatee  against  an  executor,7  and  by  one  of  the  next  of 
kin  against  an  administrator  and  his  sureties,8  to  recover  the 
complainant's  share  of  a  decedent's  estate  ;  by  a  married  woman 

9  Buck  v.    Piedmont   &   A.   Life  In-  3  United  States  r.  Am.  Bell  Telephone 

surance  Company,  4  Fed.  E.   849;  An-  Co.,  128  U.  S.  315;  United  States  v.  Gun- 

drews  v.  Smith,  5  Fed.  R.  833.  ning,  18  Fed.  R.  511  ;    s.  c.  22  Fed.  R. 

!0  Heidritter  v.  Elizabeth  Oil-Cloth  Co.,  G53.     Contra,  Attorney-General  v.  Rum- 

112  U.  S.  294;  Sharon  v.  Terry,  30  Fed.  ford  Chemical  Works,  2  Ban.  &  A.  298; 

R.  337.  United   States    v.    Am.   Bell   Telephone 

11  Union  Trust  Company  v.  Rockford,  Co.,  32  Fed.  R.  591 ;   United   States  v. 

R.  I.,  &  St.  L.  R.  R.  Co.,  6  Biss.  197.  Frazer,  22  Fed.  R.  106. 

§10.   1  Hurdu.  Moiles,  28  Fed.  R.897;  4  Moffat  v.  United  States,  112  U.  S. 

Central  Trust  Co.  v.  East  Tenn.,  Va.  &  24 ;  United  States  v.   Gunning,  18  Fed. 

Ga.  R.  Co.,  30  Fed.  R.  895.    But  see  Wa-  R.  511 ;  s.  c.  22  Fed.  R.  653. 

bash  cases,  especially  Atkins  v.  W.  St.  L.  5  Mullan  v.  United  States,  118  U.  S. 

&  P.  Ry.  Co.,  29  Fed.  R.  161 ;  Central  271 ;    McLauglin   v.   United   States,  107 

Trust  Co.  v.  W.  St.  L.  &  P.  Ry.  Co.,  29  Fed.  U.  S.  526  ;  Western  Pacific  Railroad  Co. 

R.  618,  and  Mercantile  Tr.  Co.  v.  Kana-  v.  United  States,  108  U.  S.  510. 

wha  &  O.  Ry.  Co.,  39  Fed.  R.  337.  6  New  Orleans  v.  Morris,  105  U.  S.  600. 

§  11.   i  Hunter  v.  United  States,  5  Pet.  7  Mayer  v.  Foulkrod,  4  Wash.  C.  C.  349. 

172.  8  Payne  v.  Hook,  7  Wall.  425;  Tratt 

-  Moffat  v.  United  States,  112  U.  S.  24.  v.  Northam,  5  Mason,  95. 


§  11.]      EQUITABLE    JURISDICTION   OF   THE   FEDERAL    COURTS.  13 

to  recover  money  which  belongs  to  her  separate  estate  ; 9  by  a 
single  man  to  have  declared  null  and  void  a  paper  purporting 
to  be  a  marriage  contract  executed  by  him  ; 10  to  set  aside  a 
contract  obtained  by  fraud  ; n  to  reform  an  instrument  which 
was  executed  by  mistake;12  to  set  aside  a  conveyance  obtained 
for  a  grossly  inadequate  consideration  from  a  man  in  a  state  of 
intoxication,  partly  caused  by  the  acts  of  the  defendant;13  by 
the  beneficiary  of  a  trust  against  his  trustee  and  a  debtor  of 
the  trust  estate  ; 14  by  the  holder  of  a  corporate  bond  to  enforce 
his  lien  upon  the  tolls  pledged  to  secure  its  payment;15  by  a 
stockholder  in  a  corporation  to  recover  its  money  fraudulently 
misappropriated  by  its  directors  ; 16  by  a  stockholder  against  a  cor- 
poration to  compel  the  retransfer  of  stock  fraudulently  trans- 
ferred to  another  ; 17  to  compel  specific  performance  of  a  contract 
for  the  sale  of  corporate  stock,18  unless,  possibly,  when  its  posses- 
sion is  desired  for  unconscientious  or  speculative  purposes,19  or  the 
stock  is  of  a  kind  that  can  be  readily  bought  in  open  market; 
to  compel  specific  performance  of  a  contract  to  issue  an  insurance 
policy,  and  in  the  same  suit  to  compel  payment  of  the  polic}^  ;  20  in 
Virginia,  a  bill  by  a  creditor  of  an  insolvent  firm  which  is  dispos- 
ing of  its  assets  in  fraud  of  creditors,  when  filed  in  behalf  of  the 
other  creditors  as  well  as  himself,  and  praying  the  appointment 
of  a  receiver,  an  injunction  against  any  interference  by  others 
with  the  firm  assets,  and  the  distribution  of  those  assets  among 
the  creditors  equally  : 21  a  bill  by  a  trustee  and  his  beneficiary  to 
obtain  possession  of  land  subject  to  the  trust;22  to  enjoin  a  town- 
ship from  setting  up  as  a  defence  to  an  action  upon  bonds  issued 
by  it  the  accidental  omission  of  the  town  seal  thereon;23  to  en- 
force a  decree  for  the  payment  of  money,  at  least  when  made  by 
another  court  of  equity ; u  to  enforce  the  payment  of  alimony 

9  Hunt  v.  Danforth,  2  Curt.  592.  w  Mississippi  &  Missouri  Railroad  Com- 

!»  Sharon  v.  Hill,  20  Fed.  R.  1.  pany  v.  Cromwell,  91  U.  S.  643;  Foil's 

11  Boyce  v.  Grundy,  3  Pet.  210.  Appeal,  91  Pa.  St.  434,  438. 

12  Walden  v.  Skinner,  101  U.  S.  577.  -'  Tayloe  v.  The  Merchants'  Fire  Ins. 

13  Thackrah  v.  Haas,  119  TJ.  S.  499.  Co.,  9  How.  390;  Hebert  v.  Mutual  Life 
i*  United  States  v.  Myers,  2  Brock.  516.  Ins.  Co.,  12  Fed.  R.  807  ;  Brugger  v.  State 
15  Valletta    v.   White    Water    Valley  Investment  Ins.  Co.,  5  Saw.  304. 

Canal  Co.,  4  McLean,  192.  ^  Fink  v.  Patterson,  21  Fed.  R.  602. 

i«  Gindrat  v.  Dane,  4  Cliff.  260.  2-  Harrison  v.  Rowan,  4  Wash.  C.  C.  202. 

17  Kilgour  v.  New   Orleans  Gas-Light         23  Bernards  Township  v.  Stebbins,  109 
Company,  2  Woods,  144.  U.  S.  341. 

18  Manufacturing  Company  v.  Bradley,        24  Shields  u.  Thomas,  18  How.  253.  262. 
105  U.  S.  175.  But  see  Tilford  v.  Oakley,  Hemps.  197. 


14  JURISDICTION.  [CHAP.  I. 

directed  to  be  paid  in  the  final  judgment  or  decree  of  a  State 
court ; 25  to  set  aside  a  judgment  obtained  by  accident,  mistake, 
or  fraud  : 26  a  bill  by  a  creditor  of  a  decedent  to  set  aside  a  fraud- 
ulent conveyance  of  his  estate  made  after  his  death  by  the 
order  of  a  court ;  2"  by  a  judgment  creditor  to  apply  to  the  satis- 
faction of  his  debt  any  interest  which  his  debtor  may  hold  in 
a  patent  or  copyright,28  or  in  a  license  to  use  a  patented  inven- 
tion ; 29  in  the  absence  of  any  statutory  restrictions,  by  the  resident 
taxpayers  in  a  county  to  prevent  an  illegal  disposition  of  the 
moneys  of  the  county,  or  the  illegal  creation  of  a  debt  which 
they  in  common  with  other  property-holders  of  the  county  may 
otherwise  be  compelled  to  pay  ; 30  for  an  injunction  against  irre- 
mediable injury  to  property  pending  an  action  of  ejectment, 
though  filed  by  a  party  out  of  possession  ;31  under  special  cir- 
cumstances, to  compel  specific  performance  of  a  railroad  lease 
and  a  guarant}r  of  the  covenants  therein  contained ; 32  to  compel 
an  accounting  by  persons  standing  in  a  trust  relation  to  the 
plaintiff,33  and  by  those  against  whom  an  action  for  account  ren- 
der would  lie  at  common  law,34  namely,  guardians  in  socage, 
bailiffs,  receivers,  and  merchants  in  their  dealings  with  each 
other  ; 35  but  not  otherwise,36  unless  the  accounts  are  mutual,  or 
very  complicated  and  intricate,37  or  the  accounting  is  supplemen- 
tal to  some  other  equitable  relief.38  For  example,  an  account 
will  not  be  decreed  against  the  infringer  of  a  patent  upon  a  bill 
filed  after  the  term  of  the  patent  has  expired.39  But  a  bill 
filed  only  a  few  days  before  the  expiration  of  a  patent  will  be 

25  Barber  v.  Barber,  21  How.  582.  90b;  1  Co.  Litt.  172  a;  Bacon's  Abridg- 
Cf.  Johnson  v.  Johnson,  13  Fed.  R.  193;  ment,  Account  A;  Buller's  Nisi  Prius,  127; 
Bowman  v.  Bowman,  30  Fed.  R.  849.  Earl  of  Devonshire's  Case,  11  Coke,  89. 

26  Metcalf  v.  Williams,  104  U.  S.  93,  95.         3«  Root  v.  Railway  Co.,  105  U.  S.  189 ; 
2"  Johnson  v.  Waters,  111  U.  S.  640.  Consolidated  Safety  Valve  Co.  r.  Ashton 

28  Ager  v.  Murray,  105  U.  S.  126.  Valve    Co.,   26    Fed.    R.    319  ;    Lord   v. 

29  Matthews  v.  Green,  19  Fed.  R.  649.       Whitehead,  &c.  Mach.  Co.,  24  Fed.  R.  801. 
"(l  Mr.   Justice   Field   in    Crampton   v.         37  Gaines  v.  New  Orleans,   17  Fed.  B. 

Zabriskie,  101  U.  S.  601,  609.  16;  s.  c.  4  Woods,  213;  John  Crossley 

si  Erhardt  v.  Boaro,  113  U.  S.  537.  Sons  v.  New   Orleans,  20  Fed.  R.  352 ; 

82  Pennsylvania  R.  R.  Co.  v.  St.  L.,  A.,  Baker  v.  Biddle,  Bald.  394;  Blakeley  r. 

&  T.  H.  R.  R.  Co.,  118  U.  S.  290.  Biscoe,   Hemps.    114.     But  see  Lord   v. 

33  P.  R.  R.  of  Mo.  v.  A.  &  P.  R.  R.  Co.,  Whitehead,  &c.  Mach.  Co.,  24  Fed.  R. 
20  Fed.  R.  277;  Fowle  v.  Lawrason,  5  Pet.  801;  Adams  v.  Bridgewater  Iron  Co.,  26 
494,  502 ;  Littlefield  v.  Perry,  21  Wall.  205.  Fed.  R.  324,  and  cases  cited. 

34  Mitchell  v.  Manufacturing  Co.,  2  38  Rubber  Co.  v.  Goodyear,  9  Wall. 
Story,  648  ;  Ivinson  v.  Hutton,  98  U.  S.  788;  Root  v.  Railway  Co.,  105  U.  S.  189. 
79 ;  Fowle  v.  Lawrason,  5  Pet.  494,  502.  39  Root  v.  Railway  Co.,  105  U.  S.  189; 

35  Bispbam's  Equity,  §  481 ;  1  Co.  Litt.  Brooks  v  Miller,  28  Fed.  R.  615,  617. 


§  12.]        EQUITABLE   JURISDICTION   OF   THE   FEDERAL    COURTS.  15 

sustained,  if  it  is  possible  to  obtain  equitable  relief  during  the  life 
of  the  patent  ;40  unless  under  the  practice  of  the  court  no  injunc- 
tion could  possibly  have  been  obtained  before  the  expiration  of 
the  patent ; 41  and  also,  perhaps,  even  when  the  bill  has  been  filed 
after  the  expiration  of  the  patent,  if  the  infringing  articles  were 
made  during  its  life.42  A  bill  to  take  an  account  of  general 
average  and  decree  contribution  has  been  sustained.43  It  has 
been  held  that  the  jurisdiction  in  equity  to  open  a  closed  account 
exists  when  equity  would  have  had  jurisdiction  were  the  account 
still  open,  notwithstanding  a  remedy  at  law  exists.44  "  It  is  possi- 
ble that  one  who  holds  land  under  grant  from  the  United  States, 
who  has  done  everything  in  his  power  to  entitle  him  to  a  patent 
(which  he  cannot  compel  the  United  States  to  issue  to  him), 
and  is  deemed  the  legal  owner,  so  far  as  to  render  the  land  tax- 
able to  him  by  the  State  in  which  it  lies,  may  be  considered  as 
having  sufficient  title  to  sustain  a  bill  in  equity  to  quiet  his  right 
and  possession."  45  "  To  give  a  court  of  equity  jurisdiction,  the 
nature  of  the  relief  asked  must  be  equitable,  even  when  the  suit 
is  based  on  an  equitable  title."  46  The  inadequacy  of  the  remedy 
at  law  which  will  justify  relief  in  equity,  does  not  consist  merely 
in  its  failure  to  produce  the  relief  sought,  —  that  is  a  not  unusual 
result  of  all  remedies,  —  but  that  in  its  nature  or  character  it  is 
not  fitted  or  adapted  to  the  end  in  view.47 

§  12.  Illustrations  of  Cases  where  the  Federal  Courts  have  refused 
to  assume  Equitable  Jurisdiction.  —  Equity  will  not  entertain  a 
bill  to  restrain  the  President  of  the  United  States  from  carrying 
into  effect  an  unconstitutional  act  of  Congress,  in  the  discharge 
of  duties  "purely  executive  and  political."1     Nor  a  bill  filed  by 

40  Beedle  r.   Bennett,   122  TJ.   S.   71;  don.  1  Fed.  R.  870;   Crossley  v.  Derby 

Clark  v.  Wooster,   119  U.  S.  322,   324;  Gaslight  Co.,  4  L.  J.  Ch.  x.  s.  25. 

Westinghouse  Air  Brake  Co.  t\  Carpen-  43  Sturgess  v.  Cary,  2  Curt.  59. 

ter,  32  Fed.  It.  484,  per  Brewer,  J. ;  Kittle  «  Bischoffsheim   v.   Baltzer,    20   Fed. 

v.  De  Graaf ,  30  Fed.  R.  689,  per  Coxe,  J. ;  R.  890. 

Adams  v.  Bridge  water  Iron  Co.,  26  Fed.  45  Gray,  J.,   in   Frost   v.  Spitley,   121 

R.  324  ;  Brooks  v.  Miller,  28  Fed.  R.  615,  U.  S.  552,  556;  citing  Carroll  v.  Safford, 

617.  3  How.  441,  463  ;  Van  Wyck  v.  Knevals, 

«  Clark   v.   Wooster,   119  U.  S.   322,  106  U.  S.  360,  370 ;  Van  Brocklin  v.  Ten- 

324  ;  Westinghouse  Air  Brake  Co.  v.  Car-  nessee,  117  U.  S.  151,  169. 

penter,  32  Fed.  R.  484.  4G  Fussell  v.  Gregg,  113  U.  S.  550,  554 ; 

42  N.  Y.  Belting  &  Packing  Co.  v.  Ma-  per  Woods,  J. 

gowan,  27  Fed.   R.  Ill  ;  citing  Root  v.  47  Miller,   J.,   in    Thompson   v.    Allen 

Railway  Co.,  105  U.  S.  189;  American  County,  115  U.  S.  550,  554. 

D.  R.  B.  Co.  v.  Rutland  Marble  Co.,  2  §  12.   *  Mississippi  v.  Johnson,  4  Wall. 

Fed.  R.  356  :  Am.  D.  R.  B.  Co.  v.  Slid-  475. 


16  JURISDICTION.  [CHAP.  I. 

a  State  to  protect  rights  which  are  purely  political,  even  though 
its  rights  of  property  may  be  thereby  incidentally  affected.2  Nor 
a  bill  by  a  citizen  of  the  United  States  to  enforce  an  "abstract 
right "  which  the  complainant  asserts,  and  which  he  may  never 
practically  exercise  ;  as,  for  example,  the  right  to  remove  an 
obstruction  from  a  navigable  river,  when  he  does  not  allege  that 
he  is  about  to  navigate  the  river.3  Nor  a  bill  filed  by  a  coupon- 
holder,  who  does  not  allege  himself  to  be  a  taxpayer,  to  enjoin  a 
State  officer  from  refusing  to  receive  his  coupons  in  payment  of 
taxes,  as  is  required  by  a  contract  between  the  coupon-holder 
and  the  State.4  Nor  a  bill  to  compel  municipal  or  State  officers 
to  levy  a  tax,  since  the  remedy  when  it  exists  at  all  is  by  man- 
damus.5 Nor  a  bill  for  the  appointment  of  a  receiver  to  levy6 
taxes,  or  to  collect  taxes  previously  levied.7  Nor  a  bill  to  enjoin 
the  collection  of  an  internal  revenue  tax  illegally  assessed.8  Nor 
a  bill  to  restrain  the  collection  of  a  State  tax,  no  matter  how 
illegally  imposed,9  unless  its  enforcement  would  lead  to  a  multi- 
plicity of  suits,10  or  produce  irreparable  injury,  or  throw  a  cloud 
upon  the  title  of  real  estate,  or  possibly  when  its  assessment  was 
made  by  a  fraud  of  which  equity  would  take  cognizance,  or 
when  there  is  at  law  no  means  of  recovering  its  amount.11  Nor 
solely  for  purposes  that  could  be  accomplished  by  an  action  in 
ejectment.12  Nor  to  quiet  the  title  to  real  estate  when  the  com- 
plainant's rights  are  purely  equitable,13  or,  in  the  absence  of  a 
State  statute  authorizing  such  a  suit,  when  he  is  not  in  posses- 
sion of  the  land.11  Nor,  usually,  to  restrain  the  seizure  or  compel 
the  return  of  personal  property 15  unless  its  loss  by  the  owner 

2  Georgia  v.  Stanton,  6  Wall.  50.  113  U.  S.  516;  Dundee  Mortgage  Trust 

3  Spooner  v.  McConnell,  1  McLean,  Investment  Co.  v.  School  District  No.  1, 
337.     See  Marye  v.  Parsons,  114  U.   S.     19  Fed.  R.  359. 

325.  n  First   National    Bank   v.    Douglass 

4  Marye  v.  Parsons,  114  U.  S.  325.  County,  3  Dill.  298 ;  Union  Pacific  R.  R. 
&  Walkley  t>.  Muscatine,  6  Wall.  431.       Co.  v.  McShane,  3  Dill.  303,  312. 

6  llees  v,  Watertown,  19  Wall.  107;  12  Hipp  v.  Babin,  19  How.  271;  Lewis 
Heine  v.  Levee  Comm'rs,  19  Wall.  655 ;  v.  Cocks,  23  Wall.  466;  Ellis  v.  Davis, 
Meriwether  v.  Garrett,  102  U.  S.  472.  109  U.  S.  485  ;  Killian  v.  Ebbinghaus,  110 

7  Thompson  v.  Allen  County,  115  U.  S.  568 ;  United  States  v.  Wilson,  118 
U.  S.  550.  U.  S.  86 ;  Speigle  v.  Meredith,   4  Biss. 

8  U.  S.  R.  S.  §  3224 ;  Snyder  v.  Marks,  120. 

109  U.  S.  189.  13  Frost  v.  Spitley,  121  U.  S.  552. 

9  Hanne winkle  v.  Georgetown,  15  u  United  States  v.  Wilson,  118  U.  S. 
Wall.  548 ;  Dows  v.  Chicago,  11   Wall.     86 ;  Frost  v.  Spitley,  121  U.  S.  552. 

108 ;  State  Railroad  Tax  Cases,  92  U.  S.        15  Knox  v.  Smith,  4  How.  298  ;  Van 
575 ;  Milwaukee  v.  Koeffler,  116  U.  S.  219.     Norden  v.  Morton,  99  U.  S.  378.     But  see 
10  Union  Pacific  Ry.  Co.  v.  Cheyenne,     Crane  v.  McCoy,  1  Bond,  422. 


§  12.]         WHEN    EQUITABLE    JURISDICTION   DOES   NOT    EXIST.  17 

would  result  in  irreparable  injury  by  the  destruction  of  bis  busi- 
ness and  commercial  credit,16  or  by  rendering  it  impossible  for 
him  to  manage  his  farm,17  or  on  account  of  its  unique  value  ;18  or 
if  it  be  held  in  trust.19  That  the  value  of  the  property  is  so 
great  that  the  complainant  is  unable  to  give  the  bond  required  in 
an  action  of  replevin,  affords  no  ground  for  the  interference  of 
equity.20  Nor  can  a  bill  be  sustained  which  seeks  to  recover 
damages  for  a  conversion  ;21  or  for  a  fraudulent  misrepresenta- 
tion ;22  or  for  a  fraudulent  conspiracy.23  "  In  cases  of  fraud  and 
mistake,  as  under  any  other  head  of  chancery  jurisdiction,  a  court 
of  the  United  States  will  not  sustain  a  bill  in  equity  to  obtain 
only  a  decree  for  the  payment  of  money  by  way  of  damages, 
when  the  like  amount  can  be  recovered  in  an  action  sounding 
in  tort  or  for  money  had  and  received."24  Nor  to  collect  a  note 
from  its  maker25  or  an  indorsee.26  Nor  to  collect  the  amount  of 
an  insurance  policy.27  Nor  a  bill  filed  by  an  insurance  company 
after  a  loss  has  occurred,  to  obtain  the  cancellation  of  a  policy 
procured  by  fraud.28  Nor,  except  in  a  very  extraordinary  case, 
a  bill  to  enjoin  slanders  or  libels.29  Nor,  it  has  been  said,  a 
bill  to  enjoin  criminal  proceedings.30  Nor  a  bill  to  enjoin  the 
removal  of  an  officer  of  a  State  or  municipality.31  Nor  a  bill  to 
compel  a  public  officer  to  perform  a  ministerial  duty.32  Nor  a 
bill  by  the  assignee  of  a  cause  of  action  to  enforce  for  his  own 
use  the  legal  right  of  his  assignor,  when  he  seeks  the  aid  of 
equity  merely  upon  the  ground  that  he  cannot  maintain  an 
action  at  law  in  his  own  name.33     Nor  a  bill  by  a  private  citizen 


16  Watson  v.  Sutherland,  5  Wall.  74.  25  Dowell  v.  Mitchell,  105  U.  S  430. 

17  Breeden  v.  Lee,  2  Hughes,  484.  26  Shields  v.  Barrow,  17  How.  130. 

18  Pusey  v.  Pusey,  1  Vern.  273 ;  Duke  27  Graves  v.  Boston  Marine  Ins.  Co.,  2 
of  Somerset  v.  Cookson,  3  P.  Wins.  389;  Crancli,  410. 

a.  c.  1  Leading  Cases  in  Equity,  821.  28  Home  Ins.  Co.  v.  St;inchfield,  1  Dill. 

i»  New   Orleans  v.  Morris,  105  U.  S.  424  ;  Insurance  Co.  -v.  Bailey,  13  Wall. 

600.  016. 

ao  In  re  Oregon  Iron  Works,  4  Saw.  109,  29  Francis    v.   Flinn,   118    U.   S.   385; 

170;  s.  c.  17  N.  B.  R.  404.  Baltimore  Car  Wheel   Co.  v.  Bomis,  29 

2i  Dumont  v.  Fry,  12  Fed.  R>21.  Fed.  R.  95.     Contra  Emack  v.  Kane,  34 

22  Russell  v.  Clark,  7  Cranch,  09 ;  White  Fed  B.  46. 

v.  Boyce,  21  Fed.  R.  228.  8°  In  re  Sawyer,  124  U.  S.  200;  Sness 

23  Ambler  v.  Choteau,  107  U.  S.  586.  v.  Noble,  31  Fed.  R.  855. 

24  Buzard  v.  Houston,   119  U.  S.  347,  31  In  re  Sawyer,  124  U.  S.  200. 

352,  per  Gray,  J. ;  citing  Parkersburg  v.  32  Craig  v.  Leitensdorfer,  123  U.  S.  189. 

Brown,   106  U.   S.  487,  500;  Ambler   v.  33  Hayward  v.  Andrews,  106  U.  S.  672; 

Choteau,   107    U.   S.   586;    Litchfield   v.  New    York    Guaranty  Co.   v.   Memphis 

Ballou,  114  U.  S.  190.  Water  Co.,  107  U.  S.  205. 


18  JUEISDICTION.  [CHAP.  I. 

to  set  aside  a  land-patent  of  the  United  States,  on  account  of 
fraud  upon  the  government  used  in  its  procurement,34  although 
if  fraud  were  then  practised  upon  the  plaintiff  he  might  have 
relief  upon  the  ground  of  estoppel.35  Nor  a  bill  filed  by  a  credi- 
tor for  himself  alone  to  apply  equitable  assets  to  the  payment 
of  his  debt,  unless  he  has  obtained  a  judgment  for  his  claim  in  a 
court  of  the  same  State  or  judicial  district,  and  had  the  return 
of  an  execution  issued  thereon  unsatisfied,36  —  not  even,  it  has 
been  held,  when  it  is  shown  that  the  debtor  is  insolvent,  and 
has  no  property  which  can  be  reached  by  legal  process,37  —  un- 
less to  enforce  a  trust  or  equitable  right.38  Nor,  in  the  absence  of 
a  State  statute  authorizing  such  a  proceeding,  a  bill  to  set  aside 
the  probate  of  a  will  on  account  of  mistake,  undue  influence, 
forgery,  or  other  fraud.39  Nor  to  enjoin  an  action  at  law  to 
which  the  complainant  has  a  clear  legal  defence.40  Nor  to  set 
aside  or  enjoin  proceedings  to  enforce  a  judgment  at  law  because 
of  fraud  ;  unless  the  complainant  had  a  defence  to  the  action 
upon  the  merits,41  and  either  the  fraud  was  extrinsic  to  the  mat- 
ter tried  and  not  in  issue  in  the  former  suit,  nor  then  known  to 
the  complainant,  or  some  unconscientious  advantage  was  taken 
of  the  successful  judgment  debtor  during  the  progress  of  the  suit 
without  any  fault  or  negligence  upon  his  part.42  It  was  held 
by  Chief  Justice  Chase,  that  an  insolvent  cannot  maintain  a  bill 
for  the  appointment  of  a  receiver  to  distribute  his  assets  among 
his  creditors.43  It  has  been  said  that  a  receiver,  assignee  in 
bankruptcy,  or  assignee  under  a  voluntary  general  assignment, 
each  of  whom  represents  creditors  as  well  as  the  debtor,  cannot 
maintain  a  bill  to  enforce  a  collateral  obligation  given  to  a  credi- 
tor or  to  a  body  of  creditors  by  a  third  person  for  the  payment 
of  the  debts  of  the  insolvent.44     A  bill  will  be  dismissed,  which 

34  Steel  v.  Smelting  Co.,  106  U.  S.  447.  *°  Grand-Chute  v.  Winegar,  15  Wall. 

35  Steel  v.  Smelting  Co.,  106  U.  S.  447,  373;  Francis  v.  Flinn,  118  U.  S.  385; 
454.  Hapgood  v.  Hewitt,  119  U.  S.  226.     See 

36  Case  v.  Beauregard,  99  U.   S.  119;  Drexel  v.  Berney,  122  U.  S.  241. 
Smith  v.   Railroad   Co.,  99   U.   S.  398;  41  White  v.  Crow,  110  U.  S.  183. 
Walser  v.  Seligman,  13  Fed.  R.  415.  42  Life   Ins.   Co.   v.  Bangs,  103  U.  S. 

37  Walser  v.  Seligman,  13  Fed.  R.  415.  780,  782;  Cragin  v.  Lovell,  109  U.  S.  194. 
But  see  Case  v.  Beauregard,  101  U.  S.  43  Hugh  v.  McRae,  Chase's  Dec.  466. 
688,  at  page  690.  Contra,  Brassey  v.  N.  Y.  &  N.  E.  R.  R.  Co., 

38  Case  v.  Beauregard,  101  U.  S.  688,  19  Fed.  R.  663 ;  Wabash,  St.  L.  &  P.  Ry. 
at  page  690.  Co.  v.  Central  Trust  Co.,  22  Fed.  R.  272. 

39  Broderick's  Will,  21  Wall.  503 ;  El-  See  Beach  on  Receivers,  §  327. 

lis  v.  Davis,  109  U.  S.  485.  44  Jacobson  v.  Allen,  12  Fed.  R.  454 


§  12.]         WHEN   EQUITABLE   JURISDICTION   DOES   NOT   EXIST.  19 

seeks  to  enforce  specific  performance  of  a  contract  containing  a 
power  of  revocation  by  the  defendant.45  So  was  a  bill  to  compel 
the  transfer  of  corporate  stock,  which  the  complainant  obtained 
for  an  inadequate  consideration,  and  which  he  wished  to  use  for 
purely  speculative  purposes  and  to  gain  thereby  an  unconscien- 
tious advantage.46  In  the  absence  of  statutory  authority,  a  private 
individual  cannot  file  a  bill  to  obtain  the  forfeiture  of  a  corporate 
franchise.47  Nor  can  a  corporation  be  enjoined  from  acting  be- 
yond its  legal  powers  at  the  suit  of  a  business  rival  not  one  of 
its  stockholders.48  Nor  can  a  stockholder  file  a  bill,  founded 
upon  rights  which  may  properly  be  asserted  by  his  corporation, 
against  it  and  other  parties,  unless  there  exists  "as  the  foundation 
of  the  suit  some  action  or  threatened  action  of  the  managing 
board  of  directors  or  trustees  of  the  corporation  which  is  beyond1 
the  authority  conferred  on  them  by  their  charter  or  other  source 
of  organization  ;  or  such  a  fraudulent  transaction  completed  or 
contemplated  by  the  acting  managers,  in  connection  with  some 
other  party,  or  among  themselves,  or  with  other  shareholders,  as 
will  result  in  serious  injury  to  the  corporation,  or  to  the  interests 
of  the  other  shareholders  ;  or  where  the  board  of  directors,  or  a 
majority  of  them,  are  acting  for  their  own  interest,  in  a  manner 
destructive  of  the  corporation  itself,  or  of  the  rights  of  the  other 
shareholders  ;  or  where  the  majority  of  shareholders  themselves 
are  oppressively  and  illegally  pursuing  a  course  in  the  name  of 
the  corporation  which  is  in  violation  of  the  rights  of  the  other 
shareholders,  and  which  can  only  be  restrained  by  the  aid  of  a 
court  of  equity.  Possibly  other  cases  may  arise  in  which,  to 
prevent  irremediable  injury  or  a  total  failure  of  justice,  the  court 
would  be  justified  in  exercising  its  powers ;  but  the  foregoing 
may  be  regarded  as  an  outline  of  the  principles  which  govern 
this  class  of  cases.  But  in  addition  to  the  existence  of  griev- 
ances which  call  for  this  kind  of  relief,  it  is  equally  important 
that  before  the  shareholder  is  permitted  in  his  own  name  to 
institute  and  conduct  a  litigation  which  usually  belongs  to  the 
corporation,  he  should  show  to  the  satisfaction  of  the  court  that 
he  has  exhausted  all  the  means  within  his  reach  to  obtain,  within 

45  Express, Co. v.  Railroad  Co.,  99  U.S.  47  Gaylord  v.  Fort  Wayne,  M.  &  C. 
191.  R.  R.  Co.,  6  Biss.  28G. 

46  M.  &  M.  R.  R.  Co.  v.  Cromwell,  91  48  Railroad  Co.  v.  Ellerman,  105  U.  S. 
U.  S.  643.     See  Foil's  Appeal,  91  Pa.  St.  1GG. 

434. 


20  JURISDICTION.  [CHA.P.  I. 

the  corporation  itself,  the  redress  of  his  grievances,  or  action  in 
conformity  to  his  wishes.  He  must  make  an  earnest,  not  a  simu- 
lated, effort  with  the  managing  body  of  the  corporation  to  induce 
remedial  action  on  their  part,  and  this  must  be  made  apparent 
to  the  court.  If  time  permits,  or  has  permitted,  he  must  show, 
if  he  fails  with  the  directors,  that  he  has  made  an  honest  effort 
to  obtain  action  by  the  stockholders  as  a  body,  in  the  matter  of 
which  he  complains.  And  he  must  show  a  case,  if  this  is  not 
done,  where  it  could  not  be  done  or  it  was  not  reasonable  to 
require  it." 49  Analogous  rules  regulate  a  suit  by  a  stockholder 
to  set  aside  a  contract  by  the  corporation  as  beyond  the  powers 
conferred  in  its  charter.50  It  has  been  said  that  a  court  of  equity 
has  no  power  to  seize  a  man's  property,  and  through  its  officers 
complete  a  bridge  in  pursuance  of  a  contract  which  he  has 
made.51  Nor  is  it  a  sufficient  ground  for  the  interference  of 
a  court  of  equity  that  the  evidence  in  a  cause  is  voluminous 
and  tedious.52 

§  13.  Federal  Courts  which  have  Jurisdiction  in  Equity.  —  The 
equitable  jurisdiction  of  the  Federal  courts,  from  which  category 
the  courts  of  the  Territories  and  of  the  District  of  Columbia  are 
here  excluded,1  is  in  the  Supreme  Court,  the  Circuit  Courts,  the 
District  Courts,  and  the  Court  of  Claims. 

§  14.  Original  Equitable  Jurisdiction  of  the  Supreme  Court.  — 
The  Supreme  Court  has  original  jurisdiction  both  at  law  and 
equity  in  all  cases  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  State  is  a  party.1  The  juris- 
diction of  the  Supreme  Court  over  controversies  to  which  a  State 
is  a  party  is  exclusive,  except  as  regards  controversies  between 
a  State  and  its  citizens,  or  between  a  State  and  citizens  of  other 
States.2  In  suits  to  which  a  State  is  a  party  the  practice  in 
equity  is  followed.3  The  Supreme  Court  has  exclusively  all 
such  jurisdiction  of  suits  against  ambassadors  or   other   public 

<9  Hawes  v.  Oakland,  104  U.  S.  450,  51  Texas  &  St.  Louis  Ry.  Co.  v.  Rust, 

460,  461  ;  per  Miller,  J.     See  also  Hunt-  17  Fed.  R.  275. 

ington  v.  Palmer,  104  U.  S.  482  ;  Green-  62  Bowen  v.  Chase,  94  U.  S.  812,  824. 

wood  v.  Freight  Co.,  105  U.  S.  13  ;  De-  §  13.    »  See  Clinton  v.  Englebrecht,  13 

troit  v.  Dean,  106  U.  S.  537  ;  Quincy  v.  Wall.  434. 

Steel,  120  U.  S.241 ;  County  of  Tazewell  §  14.   *  Const,  art.  iii. 

v.  Farmers'  L.  &  Tr.  Co.,  12  Fed.  R.  752.  2  tj.  S.  R.  S.  §  687. 

60  Dimpfell  v.  Ohio  &  Mississippi  R.  R.  3  Georgia  v.  Brailsford,  2  Dall.  402, 

Co.,  110  TJ.  S.  209 ;  Tazewell  v.  Farmers'  Kentucky  v.  Dennison,  24  How.  266. 
Loan  &  Trust  Co.,  12  Fed.  R.  752 ;  Green- 
wood v.  Freight  Co.,  105  U.  S.  13. 


§  15.]         ORIGINAL   JURISDICTION   OF   THE   CIRCUIT   COURTS.  21 

ministers,  or  their  domestics  or  domestic  servants,  as  a  court  of 
law  can  have  consistently  with  the  law  of  nations ;  and  original, 
but  not  exclusive  jurisdiction  of  all  suits  brought  by  ambassadors, 
or  other  public  ministers,  or  in  which  a  consul  is  a  party.4 

§  15.  Original  Jurisdiction  of  the  Circuit  Courts  of  the  United 
States.  —  The  Circuit  Courts  of  the  United  States  have  original 
cognizance,  concurrently  with  the  courts  of  the  several  States,  of 
all  suits  of  a  civil  nature,  at  common  law  or  in  equity,  where 
the  matter  in  dispute  exceeds,  exclusive  of  interest  and  costs,  the 
sum  or  value  of  two  thousand  dollars,  and  arising  under  the 
Constitution  or  laws  of  the  United  States,  or  treaties  made 
under  their  authority,  or  in  which  controversy  the  United  States 
are  plaintiffs  or  petitioners  ;  suits  in  which  there  is  a  contro- 
versy between  citizens  of  different  States,  in  which  the  matter  in 
dispute  exceeds,  exclusive  of  costs,  the  sum  or  value  aforesaid  ; 
or  a  controversy  between  citizens  of  the  same  State,  claiming 
land  under  grants  of  different  States,  or  a  controversy  between 
citizens  of  a  State  and  foreign  States,  citizens  or  subjects,  in 
which  the  matter  in  dispute  exceeds,  exclusive  of  interest  and 
costs,  the  sum  or  value  aforesaid:1  and,  irrespective  of  the  value 
of  the  matter  in  dispute,  of  cases  commenced  by  the  United 
States  or  by  direction  of  any  officer  thereof  against  national 
banks,  or  cases  for  winding  up  the  affairs  of  any  such  bank:2  and 
all  suits  authorized  by  law  to  be  brought  by  any  person  to 
redress  the  deprivation,  under  color  of  any  law,  statute,  ordi- 
nance, regulation,  custom,  or  usage  of  any  State,  of  any  right, 
privilege,  or  immunity,  secured  by  the  Constitution  of  the  United 
States,  or  of  any  right  secured  by  any  law  providing  for  equal 
rights  of  citizens  of  the  United  States,  or  of  all  persons  within 
the  jurisdiction  of  the  United  States,  whether  such  suit  was 
originally  brought  in  one  of  them  or  removed  there  according 
to  law  from  a  State  court:3  of  suits  against  the  United  States,  to 
collect  claims  of  more  than  one  thousand  dollars,  for  money  only, 
founded  upon  the  Constitution  of  the  United  States  or  any  law 
of  Congress  except  for  pensions,  or  upon  any  contract,  expressed 
or  implied,  with  the  government  of  the  United  States ;  or  for 

4  U.  S.  R.  S.  §  687.  v.  Ettlesohn,  36  Fed.  R.  209  ;  Armstrong 

§  15.   >  Act  of  March  3,1887,  24  St.  v.  Trautmann,  36  Fed.  R.  275;  McCon- 

at  L.  ch.  373,  p.  552.  ville  v.  Gilmour,  30  Fed.  R.  277. 

2  Act  of  March  3,  1887,  §  4 ;  24  St.  3  U.  S.  R.  S.  §  029;  Act  of  March  3, 

at  L.   ch.   373,  p.  552.     See   Armstrong  1887,  24  St.  at  L.  ch.  373,  §  5. 


22  JURISDICTION.  [CHAP.  I. 

damages,  liquidated  or  unliquidated,  in  cases  not  sounding  in 
tort  in  respect  of  which  claims  the  plaintiff  would  be  entitled  to 
redress  against  the  United  States  in  a  court  of  law,  equit}T,  or 
admiralty,  if  the  United  States  were  suable,  —  except  war  claims, 
and  except  other  claims,  which,  before  March  3,  1887,  were 
rejected  or  reported  on  adversely  by  any  court,  department,  or 
commission  authorized  to  hear  and  determine  the  same : 4  and 
of  proceedings  to  condemn  for  national  public  uses  land  within 
their  respective  districts.5  Formerly  Circuit  Courts  of  the  United 
States  had  jurisdiction,  without  regard  to  the  value  of  the  matter 
in  dispute,  of  all  suits  at  law  or  in  equity  arising  under  the  patent 
or  copyright  laws  of  the  United  States,  or  under  any  act  pro- 
viding for  internal  revenue  or  revenue  from  imports  or  tonnage, 
or  under  the  postal  laws,  or  under  any  of  the  laws  relating  to 
the  slave  trade ;  of  suits  by  the  assignees  of  debentures  for 
drawback  of  duties ;  of  proceedings  by  the  writ  of  quo  warranto 
prosecuted  by  a  district  attorney  of  the  United  States  for  the 
removal  from  office  of  any  person  holding  office  contrary  to  the 
Fourteenth  Amendment  to  the  Constitution,  except  a  member 
of  Congress  or  of  a  State  legislature ;  and  of  suits  to  recover 
possession  of  any  office  except  that  of  elector  of  President  or 
Vice-President,  representative  or  delegate  in  Congress,  or  mem- 
ber of  a  State  legislature,  authorized  by  law  to  be  brought, 
wherein  it  appeared  that  the  sole  question  touching  the  title  to 
such  office  arose  out  of  the  denial  of  the  right  to  vote  to  any 
citizen  on  account  of  race,  color,  or  previous  condition  of  servi- 
tude.6 Whether  the  Act  of  1887  has  deprived  the  Circuit  Courts 
of  this  jurisdiction  is  under  the  authorities  a  doubtful  question. 
It  has  been  held  at  circuit  that  those  courts  still  have  jurisdic- 
tion, irrespective  of  the  value  of  the  matter  in  dispute,  of  suits 
at  law  or  in  equity  arising  under  the  patent  and  copyright  laws  ; 7 
of  suits  at  law  or  in  equity  arising  under  the  revenue  laws  ; 8  and 
of  actions  at  common  law  b}^  the  United  States  or  an  officer 
thereof,  including  in  this  term  a  receiver  of  a  national  bank 
appointed  by  the  comptroller.9     No  Circuit  Court  of  the  United 

4  24  St.  at  L.  505 ;  United  States  v.         8  Ames  v.  Hager,  86  Fed.  R.  129. 
Jones,  131  U.  S.  1.  9  Armstrong  v.  Ettlesohn,  86  Fed.  R. 

5  25  St.  at  L.  ch.  728,  p.  357.  209 ;  Armstrong  v.  Trautmann,  36  Fed. 

6  U.  S.  R.  S.  §  629.  R.  275;  McConville  v.  Gilmour,  36  Fed. 

7  Miller-Magee   Co.  v.  Carpenter,   34  R.  277.     Contra,  United  States  v.  Huff- 
Fed.  R.  433.  master,  35  Fed.  R.  81. 


§  16.]  MATTER   IX   DISPUTE.  23 

States  has  cognizance  of  any  suit,  except  upon  foreign  bills  of 
exchange,  to  recover  the  contents  of  any  promissory  note  or 
other  chose  in  action,  in  favor  of  any  assignee  or  of  any  subse- 
quent holder,  if  such  instrument  be  payable  to  bearer  and  be 
not  made  by  any  corporation,  unless  such  suit  might  have  been 
prosecuted  in  such  court  to  recover  the  said  contents  if  no 
assignment  or  transfer  had  been  made.10 

§  16.  Matter  in  Dispute.  —  The  value  of  the  matter  in  dispute 
must  exceed  exclusive  of  interest  and  costs  the  sum  of  two  thou- 
sand dollars.1  This  signifies  not  the  amount  of  any  contingent 
loss  or  damage  which  one  of  the  parties  may  sustain  by  a  de- 
cision against  him,  but  the  amount  in  dispute  between  the  par- 
ties in  the  pending  suit.2  Thus,  the  reason  that,  on  account 
of  its  probative  force,  the  judgment  may  operate  as  an  estoppel 
in  a  subsequent  proceeding,  does  not  increase  the  value  of  the 
matter  in  dispute.3  Where  the  suit  is  upon  a  demand  on  which 
the  law  liquidates  the  damages  for  a  default,  the  amount  of  the 
damages  as  liquidated  by  the  law,  not  the  amount  named  in  the 
plaintiff's  pleading,  is  the  value  of  the  matter  in  dispute;4  but 
where  the  alleged  cause  of  action  is  one  in  which  the  law  does 
not  liquidate  the  damages,  the  amount  for  which  the  plaintiff 
demands  judgment  is  alone  to  be  considered,5  unless  it  clearly 
appears  that  the  amount  named  is  merely  colorable  and  beyond 
the  amount  of  a  reasonable  expectation  of  recovery.6  Thus,  in 
an  action  of  debt  on  a  bond  of  one  hundred  dollars,  the  principal 
and  interest  are  put  in  demand,  and  no  more  can  be  recovered 
except  costs,  though  the  plaintiff  lay  his  damages  at  ten  thousand 
dollars.  The  value  of  the  matter  in  dispute  cannot,  therefore, 
exceed  one  hundred  dollars  with  interest  and  costs."  But  in  an 
action  for  assault  and  battery,  the  law  prescribes  no  limitation 
to  the  amount  which  can  be  recovered  ;  and  the  amount  claimed 
by  the  plaintiff  is  the  sole  criterion  to  which  resort  can  be  had 

i°  Act  of  March  3,  1887,  §  1,  24  St.  at         «  Wilson  v.  Daniel,  3  Dall.  401,  407  ; 

L.  ch.  373,  p.  552,  as  amended  by  act  of  Barry  v.  Edmunds,  116  U.  S.  550,  5G0. 
August  13,  1888,  25  St.  at  L.  p.  433.  5  Smith  v.  Greenhow,  109  U.  S.  669 ; 

§  16.   !  Act  of  March  3,  1887,  §  1,  24  Wilson  v.  Daniel,  3  Dall.  401,407;  Barry 

St.  at  L.  ch.  373,  p.  552.  v.  Edmunds,  116  U.  S.  550,  560. 

2  Ross  v.  Prentiss,  3  How.  771,  772 ;  6  Lee  v.  Watson,  1  Wall.  337 ;  Bow- 
Elgin  v.  Marshall,  106  U.  S.  579;  Bruce  man  v.  Chicago  &  N.  W.  Ry.  Co.,  115 
v.  M.  &  K.  R.  R.  Co.,  117  U.  S.  514.  U.  S.  611,  616;  Smith  v.  Greenhow,  109 

8  Elgin  v.  Marshall,  106   U.  S.   579 ;  U.  S.  669. 
Bruce  v.  M.  &  K.  R.  R.  Co.,  117  U.  S.  514.  7  Wilson  v.  Daniel,  3  Dall.  401,  407. 


24  JURISDICTION.  [CHAP.  I. 

in  settling  the  question  of  jurisdiction.8  Where  a  defendant's 
counterclaim  has  been  dismissed  and  judgment  rendered  for  the 
plaintiff,  the  amount  of  the  counterclaim  added  to  the  amount 
recovered  by  the  plaintiff  is  the  matter  in  dispute.9  The  value 
of  property  sued  for  is  not  always  the  matter  in  dispute.10  Where 
a  complaint  contains  several  counts,  each  for  a  separate  sum 
alleged  to  be  due,  and  disputed  by  the  defendant,  the  aggregate 
of  the  sums  constitutes  the  value  of  the  matter  in  dispute.11  The 
value  of  the  matter  iu  dispute  in  a  suit  for  an  accounting  has 
been  said  to  be  the  amount  of  the  disputed  items  of  the  account.12 
In  a  suit  for  an  injunction  the  amount  in  dispute  is  the  value 
of  the  object  to  be  gained  by  the  bill,  not  merely  the  amount  of 
damages  already  suffered  by  the  complainant.13  Thus,  in  a  suit 
to  enjoin  the  use  of  a  trademark  and  compel  an  account  of 
profits,  the  value  of  the  matter  in  dispute  is  the  value  of  the 
trademark,  not  the  amount  of  profits  which  the  'defendant  has 
derived  from  its  use.14  In  a  suit  to  cancel  a  paper  purporting  to 
be  a  marriage  contract,  the  amount  of  the  provision  to  which  the 
woman  would  be  entitled  to  receive  from  her  husband,  were  the 
contract  held  binding,  is  the  value  of  the  matter  in  dispute.15 
Where  a  number  of  plaintiffs  claiming  under  the  same  title 
and  having  a  common  interest  in  the  relief  sought,  unite  in  a 
suit,  action,  or  proceeding,  their  united  interests  constitute  the 
matter  in  dispute.10  When,  however,  a  suit  is  brought  by 
one  for  himself  and  all  others  of  a  class  similarly  situated,  the 
aggregate  interest  of  all  those  who  join  with  him,  not  that  of 
the  whole  class,  constitutes  the  matter  in  dispute.17  The  in- 
terest includes  interest  accrued  on  a  demand  before  the  suit 
was  brought.18     An  admission  by  the  defendant  in  his  pleading 

8  Wilson  v.  Daniel,  3  Dall.  401,  407 ;        14  Symonds  v.  Greene,  28  Fed.  R.  834. 
Barry  v.  Edmunds,  116  U.  S.  550,  560.  15  Sharon  v.  Terry,  36  Fed.  R.  337. 

9  Dushane  v.  Benedict,  120  U.  S.  630.  16  Shields    v.    Thomas,    17    How.    3  ; 

10  Gibson  v.  Shufeldt,  122  U.S.  27,29;  Market  Co.  v.  Hoffman,  101  U.  S.  112; 
per  Gray,  J.  Davies  v.  Corbin,  112  U.  S.  36  ;  Estes  v. 

11  Armstrong  v.  Ettlesohn,  36  Fed.  R.  Gunter,  121  U.   S.  183.      See  Gibson  v. 
209 ;  Bernheim  v.  Birnbaum,  30  Fed.  R.  Shufeldt,  122  U.  S.  27. 

885,  887.  1T  Bruce   v.   Manchester   &  K.  R.   R. 

J-'  McCormick  v.  Gray,  13  How.  26.  Co.,  117  U.  S.  514,  516;  Massa  ».  Cut- 

13  Mississippi  &  Mo.  R.  R.  Co.  v.  Ward,  ting,  30  Fed.  R.  1 ;  Adams  v.  Board  of 

2  Black,  485;   Market   Co.   v.  Hoffman,  County   Comm'rs,   McCahon  (U.    S.    C. 

101  U.  S.  112;  Symonds  v.  Greene,  28  C.   D.    Kan.),   235;    Rich    v.   Bray,    37 

Fed.  R.   834 ;  Whitman   v.   Hubbell,   30  Fed.  R.  273. 

Fed  R  81.  18  Moore  v.  Edgefield,  32  Fed.  R.  498. 


§  18.]    SUITS  UNDEE  CONSTITUTION,  ETC.,  OF  THE  UNITED  STATES.    25 

of  part   of  the  plaintiff's  demand  will  not  divest  the  court   of 
jurisdiction.19 

S  17.  Suits  arising  under  the  Constitution  or  Laws  of  the  United 
States.  —  A  suit  arises  under  the  Constitution  or  a  law  of  the 
United  States  whenever  its  correct  decision  depends  on  the  con- 
struction of  either.1  "  When  a  proposition  has  once  been  decided 
by  the  Supreme  Court  of  the  United  States,  it  can  no  longer  be 
said  that  in  it  there  still  remains  a  Federal  question.  More  cor- 
rectly it  is  said  that  there  is  no  question,  State  or  Federal."2 
When  either  party  is  a  corporation  chartered  by  Congress,  the 
case  is  one  arising  out  of  a  law  of  the  United  States.3  Not,  how- 
ever, when  the  sole  corporate  party  derived  its  charter  from 
a  Territorial  law.4  Suits  to  which  national  banks  are  parties 
are  excepted  from  the  operation  of  this  rule,  except  cases  com- 
menced by  the  United  States  or  by  direction  of  any  officer 
thereof,  or  cases  for  winding  up  the  affairs  of  any  such  bank.5 
It  has  been  held  that  a  case  does  not  arise  under  the  laws  of  the 
United  States,  though  brought  to  enjoin  the  infringement  of  a 
patent,  when  the  defendant  admits  the  validity  of  the  patent, 
and  rests  his  defence  upon  an  alleged  license  from  the  plaintiff.6 
A  suit  on  a  judgment  recovered  in  a  court  of  the  United  States 
is  not  necessarily  a  suit  arising  under  the  laws  of  the  United 
States.7  A  ease  does  not  arise  under  the  laws  of  the  United 
States  simply  because  a  Federal  court  has  decided  in  another 
suit  the  questions  of  law  which  are  involved.8 

*»  Fuller  v.  Met.  Life  Ins.  Co.,  37  Fed.  Trautmann,  36  Fed.  R.  275 ;  McConville 

K.  163.  v.  Gilmour,  36  Fed.  R.  277. 

§  17.   '  Cohens  v.  Virginia,  6  Wheat.         6  Hartell  v.  Tilghman,  99  U.  S.  547  ; 

204,379;  Tennessee  v.  Davis,  100  U.S.  Wilson   v.   Sandford,   10   How.   99;    Al- 

257,  264 ;  Starin  v.  New  York,  115  U.  S.  bright  v.  Teas,  106  U.  S.  613;  Dale  Tile 

248,  257  ;  Southern  Pacific  R.  R.  Co.  v.  Manuf.  Co.  v.  Hyatt,  125  U.  S.  46  ;  Felix 

California,  118  U.  S.  109,  112.  v.  Scharnweber,  125  U.  S.  54 ;  McCarty 

2  Brewer,  J.,  in  Kansas  v.  Bradley,  26  &  Hall  Trading  Co.  v.  Glaenzer,  30  Fed. 

Fed.  R.  289,  290.    See  Starin  v.  New  York,  R.  387.     But  see  Smith  v.  Standard  Laun- 

115  U.  S.  248,  257  ;  Southern  Pacific  R.  dry  Mach.  Co.,  19  Fed.  R.  825  ;  Continen- 

R.  Co.  v.  California,  118  U.  S.  109,  112.  tal  Store  Service  Co.  v.  Clark,  100  N.  Y. 

s  Osborn  v.  U.  S.  Bank,  9  Wheat.  738,  365  ;  Hat  Sweat  Manuf.  Co.  v.  Reinoehl, 

823 ;    Pacific   Railroad    Removal  Cases,  102  N.  Y.  167 ;  Puetz  v.  Bransford,   32 

115  U.  S.  1;  Farmers'  L.  &  Tr.   Co.  i>.  Fed.   R.  318;   St.  Paul   Plow   Works  v. 

Denver,  S.  P.,  &  P.  R.  R.  Co.,  1  Ry.  &  Starling,   127  U.  S.  376 ;   Seibert  C.  O. 

Corp.  L.  J.  584.  Cup  Co.  v.  Manning,  32  Fed.  R.  025. 

*  Adams  Express  Co.  v.  Denver  &  R.  7  Provident  Savings  Society  v.  Ford, 

G.  R.  R.  Co.,  16  Fed.  R.  712.  114  U.   S.  635 ;   Metcalf  v.  Watertown, 

5  Act  of  March  3,  1887,  §  4,  24  St.  at  128  U.  S.  586. 
L.   ch.  373,  p.  552.     See   Armstrong  v.         8  Leather     Manufacturers'    Bank    v. 

Ettlesohn,  36  Fed.  R.  209 ;  Armstrong  v.  Cooper,  120  U.  S.  778,  781. 


26  JURISDICTION.  [CHAP.  I. 

§  18.  Controversy  between  Citizens  of  different  States.  —  A 
controversy  between  citizens  of  different  States  is  one  in  which 
every  party  upon  one  side  is  a  citizen  of  a  different  State  from 
every  party  upon  the  other.1  The  citizenship  of  formal  parties 
with  no  real  interest  in  the  controversy,  does  not  affect  the  juris- 
diction.2 In  determining  between  whom  the  controversy  exists, 
the  court  is  not  bound  by  the  title  of  the  cause  or  the  form  of  the 
pleadings,  but  should  examine  the  record,  ascertain  the  matter  in 
dispute,  and  arrange  the  parties  on  opposite  sides  of  the  same 
according  to  the  facts,  no  matter  what  their  technical  place  as 
plaintiffs  or  defendants  may  be.3 

§  19.  Citizenship.  —  If  there  are  no  other  grounds  of  jurisdic- 
tion, the  Federal  courts  do  not  take  cognizance  of  a  controversy 
between  two  aliens  ; *  or  of  one  between  a  citizen  of  the  district 
of  Columbia,2  or  a  citizen  of  a  Territory,  and  a  citizen  of  a  State.3 
A  suit  brought  by  a  State  against  one  of  its  own  citizens  or 
against  a  citizen  of  another  State  cannot,  independently  of  other 
grounds,  be  maintained  in  a  Federal  court.4  If  one  of  the  parties 
sues  or  is  sued  as  receiver,5  or  as  an  executor  or  administrator,6 
his  own  citizenship,  not  that  of  those  whom  he  represents,  is  the 
test  in  determining  the  jurisdiction.  When  an  infant  sues  by 
his  next  friend  or  special  guardian,  the  citizenship  of  the  infant 
alone  is  to  be  considered.7  A  corporation  is  conclusively  pre- 
sumed to  be  composed  of  citizens  of  the  State  or  nation  which 
chartered  it,  or  from  which  it  derives  its  powers.8  A  municipal 
corporation  is  treated  as  a  citizen  of  the  State  within  which  it  is 
situated.9  The  same  principle  has  been  applied  at  circuit  to 
an  unincorporated  association  authorized  by  statute  to  sue  and  be 

§  18.  l  Blake  v.  McKim,  103  U.  S.  336.         3  New  Orleans  v.  Winter,  1  Wheat.  91. 

2  Removal  Cases,  100  U.  S.  457  ;  Bar-  4  Alabama  v.  Wolffe,  18  Fed.  R.  836. 
ney  v.  Latham,  103  U.  S.  205  ;  Harter  v.         5  Davies  v.  Lathrop,  12  Fed.  R.  353 ; 
Kernochan,  103  U.  S.  562  ;  Maryland  v  Farlow  v.  Lea,  2  C.  L.  R.  329. 
Baldwin,     112    U.    S.     490;     Wormley  6  Bradford  v.  Williams,  3  How.  576; 
v.  Wormley,   8   Wheat.   421;   Taylor  v.  Coal  Co    v.  Blatchford,   11  Wall.   172; 
Holmes,  14  Fed.  R.  499.  Browne  v.  Browne,  1  Wash.  429. 

3  Removal  Cases,  100  U.  S.  457,  468 ;  7  Woolridge  v.  McKenna,  8  Fed.  R. 
Pacific  R.  R.  v.  Ketchum,  101  U.  S.  289;  650. 

Barney  v.  Latham,  103  U.  S.  205 ;  Carson  8  Louisville,  C.  &  C.  R.  R.  Co.  v.  Let- 

v.  Hyatt,  118  U.  S.  279,  286.  son,  2  How.  497  ;  Marshall  v.  Baltimore 

§19.  1  Mossman  v.  Higginson,  4  Dall.  &  O.  R.  R.  Co.,  16  How.  314;  Muller  v. 

12;  Rateau  v.  Bernard,  3  Blatchf.  244.  Dows,  94   U.   S.  446;  Steamship  Co.  v 

2  Hepburn  v.  Ellzey,  2  Cranch,  445 ;  Tugman.  106  U.  S.  118. 

Wescott  v.  Fairfield,  Pet.  C.  C.  45 ;  Bar-  9  Cowles  v.  Mercer  County,  7  Wall, 

ney  v.  Baltimore,  1  Hughes,  118.  118. 


§  20.]  ANCILLARY   JURISDICTION.  27 

sued  under  the  name  of  one  of  its  officers.10  A  corporation  char- 
tered by  two  or  more  States  is  treated  for  the  purposes  of  juris- 
diction as  a  citizen  of  that  one  of  them  within  whose  limits  the 
suit  is  brought.11  A  national  bank  is  deemed  a  citizen  of  the 
State  in  which  it  is  located.12  The  filing  of  a  declaration  of  his 
intention  to  become  a  citizen  of  the  United  States  does  not  ter- 
minate a  party's  alienage,  although  he  is  permitted  by  the  laws  of 
the  State  of  his  residence  to  vote  and  hold  office.13  Residence  is 
not  conclusive  evidence  of  citizenship.11  An  exercise  of  the  right 
of  suffrage  by  a  citizen  of  the  United  States  is  conclusive  evi- 
dence of  his  citizenship.15  Less  evidence  may,  however,  be 
sufficient  to  establish  a  change  of  citizenship.16  The  fact  that 
a  plaintiff  has  changed  his  residence  for  the  purpose  of  bringing 
the  suit  in  a  Federal  court  does  not  divest  the  jurisdiction,  if  the 
change  has  actually  occurred.17  A  change  of  citizenship  or  a 
change  of  parties  after  the  jurisdiction  has  once  attached  will 
not  divest  it.18 

§  20.  Under  Grants  of  Different  States.  —  Where  one  party 
claimed  land  under  a  grant  of  New  Hampshire  made  when 
Vermont  was  a  part  of  that  State,  and  the  other,  under  a  grant 
from  Vermont  made  after  their  separation,  it  was  held  that  the 
controversy  arose  between  persons  claiming  land  under  grants  of 
different  States.1  Where  a  controversy  is  founded  upon  con- 
flicting grants  of  different  States,  the  Federal  courts  have  juris- 

i«  Fargo  v.  L.  N.  A.  &  C.  R.  R.  Co.,  12  24  St.  at  L.  ch.  373,  §  4,  p.  554. 

6  Fed.  R.  787  ;  Whitman  v.  Hubbell,  30  13  Lanz  v.  Randall,  4  Dill.  425;  Maloy 

Fed.  R.  81 ;  Maltz  v.  American  Express  v.  Duden,  25  Fed.  R.  673. 

Co.,  3  Central  L.  J.,  784;  Liverpool  Ins.  "  Shelton  v.  Tiffin,  6  How.  163,  185. 

Co.  v.  Massachusetts,  10  Wall.  566.     Con-  15  Rabaud   v.   D'Wolf,   1  Paine,  580; 

tra,  Dinsmore  v.  Phila.  &  R.  Co.,  3  Central  State  Savings  Assoc,  v.  Howard,  31  Fed. 

L.  J.  157  ;  and  see  Chapman  v.  Barney,  R.  433 ;  McDonald  v.  Salem  C.  F.  Mills 

129  U.  S.  677.  Co.,  31  Fed.  R.  577. 

n  O.  &  M.  R.  R.  Co.  v.  Wheeler,  1  16  Shelton  v.  Tiffin,  6  How.  1G3,  185. 

Black,  286 ;  Railway  Co.  v.  Whitton,  13  17  Briggs  v.   French,   2    Sumner,  251, 

Wall.  270;  Muller  v.  Dows,  94  U.  S.  444.  255,  256;    Catlett  v.  Pacific  Ins.   Co.,  1 

See  Railroad  Co.  v.  Harris,  12  Wall.  65  ;  Paine,  594  ;  Cooper  v.  Galbraith,  3  Wash. 

Graham  v.  B.  H.   &   E.  R.  R.  Co.,  118  C.  C.  546,  553;  Case  v.  Clarke,  5  Mason, 

U.  S.  161  ;  Pa.  R.  R.  Co.  v.  St.  L.  A.  &  70 ;   Robertson  v.  Carson,  19  Wall.  04, 

T.  II.  R.  R.  Co.,  118  U.  S.  290  ;  Moore  106.    But  see  Morris  v.  Gilmer,  129  U.  S. 

v.  C.  St.  P.  M.  &  O.  R.  R.  Co.,  21  Fed.  315. 

R.  817 ;  C.  St.  P.  M.  &  O.  R.  R.  Co.  v.  18  Ober  v.  Gallagher,   93   U.   S.   199, 

Dakota  Co.,  28  Fed.  R.  219;  N.  &  L.  R.  206  ;  Stewart  v.  Dunham,  115  U.  S.  61, 

R.  Co.  v.  B.  &  L.  R.  R.  Co.,  19  Fed.  R.  01  ;  Phelps  v.  Oaks,  117  U.  S.  236. 

804  ;  Page  v.  Fall  River  W.  &  P.  R.  Co.,  §  20.    >  Pawlet  v.  Clark,  9  Cranch,  292; 

31  Fed.  R.  257 ;  Johnson  v.  P.  W.  &  B.  Colson  v.  Lewis,  2  Wheat.  377. 
R.  R.  Co.,  1  Am.  L.  J.  437. 


28  JURISDICTION.  [CHAP.  I. 

diction  irrespective  of  the  equitable  title  of  the  parties  before 
either  grant.2 

§  21.  Ancillary  Jurisdiction.  —  After  a  Federal  court  has  ac- 
quired jurisdiction  through  the  existence  of  the  necessary 
difference  of  citizenship  between  the  original  parties,  ancillary 
proceedings  may  be  therein  instituted,  although  parties  upon  the 
different  sides  of  the  controvers}7  are  citizens  of  the  same  State, 
and  there  is  no  other  ground  of  Federal  jurisdiction.1  "  The 
question  is  not  whether  the  proceeding  is  supplemental  and 
ancillary,  or  is  independent  and  original  in  the  sense  of  the 
rules  of  equity  pleading,  but  whether  it  is  supplemental  and 
ancillary,  or  is  to  be  considered  entirely  new  and  original,  in  the 
sense  which  this  court  has  sanctioned  with  reference  to  the  line 
which  divides  the  jurisdiction  of  the  Federal  courts  from  that  of 
the  State  courts."2  Thus,  not  only  can  a  bill  of  revivor  or  a 
supplemental  bill  be  maintained  in  a  Federal  court  which  had 
jurisdiction  of  the  original  litigation,3  but  so  can  a  bill  to  restrain, 
or  to  regulate,4  or  to  set  aside,5  or  to  obtain  a  judicial  construc- 
tion,6 or  to  enforce  a  judgment  or  decree  of  a  Federal  court.7 
A  bill  for  the  reformation  of  a  policy  of  insurance  is  ancillary 
to  an  action  upon  such  policy.8 

Conversely,  there  is  a  similar  limitation  upon  the  jurisdiction 
of  the  Federal  courts.  This  is  well  explained  in  the  following 
extract  from  an  opinion  by  Bradley,  J. : 9  "  The  question  presented 
with  regard  to  the  jurisdiction  of  the  Circuit  Court  is,  whether 
the  proceeding  to  procure  nullity  of  the  former  judgment  in  such 
a  case  as  the  present  is  or  is  not  in  its  nature  a  separate  suit,  or 
whether  it  is  a  supplementary  proceeding,  so  connected  with  the 

2  Colson    v.    Lewis,    2   Wheat.    377,  3  Clarke  v.  Mathewson,  12  Pet.  164. 

379  4  Dunn  v.  Clarke,  8  Pet.  1 ;  Freeman 

§21.  i  Dunn  r.  Clarke,  8  Pet.  1 ;  Clarke  v.  Howe,  24  How.  450,  460;  Jones  v. 
v.  Mathewson,  12  Pet.  164;  Freeman  v.  Andrews,  10  Wall.  327;  Krippendorf  v. 
Howe,  24  How.  450,  460;  Minnesota  Hyde,  110  U.  S.  276;  Johnson  v.  Chris- 
Company  v.  St.  Paul  Company,  2  Wall,  tian,  125  U.  S.  642. 

609  ;  Jones  v.  Andrews,  10  Wall.  327  ;         5  Pacific  R.  R.  of  Mo.  v.  Mo.  P.  R.  R., 

Krippendorf  v.  Hyde,  110  U.  S.  276  ;  Pa-  111  U.  S.  505,  522. 

cific  R.  R.  of  Mo.  v.  Mo.  P.  R.  R.  Ill         6  Minnesota    Company    v.    St.    Paul 

U.  S.  505,  522  ;  Dewey  v.  W.  F.  G.  C.  Co.  Company,  2  Wall.  609. 
123  U.  S.  329;    Gumbel  ».  Pitkin,  124         7  Railroad  Companies  v.  Chamberlain, 

U.  S.  131  ;  Seymour  v.  Phillips  &  C.  Con-  6  Wall.  748. 

struction  Co.,  7  Biss.  460.    But  see  Christ-         8  Rosenbaum   v.   Council   Bluffs  Ins. 

mas  v.  Russell,  14  Wall.  69.  Co.,  37  Fed.  R.  724 ;  Abraham  v.  North 

2  Miller,  J.,  in  Minnesota  Company  v.  German  F.  Ins.  Co.,  37  Fed.  R.  731. 
St.  Paul  Company,  2  Wall.  609,  633.  9  Barrow  r.  Hunton,  99  U.  S.  80,  82. 


§  22.]  LIMITATIONS    UPON   JURISDICTION    BY   RESIDENCE.  29 

original  suit  as  to  form  an  incident  to  it,  and  substantially  a  con- 
tinuation of  it.  If  the  proceeding  is  merely  tantamount  to  the 
common-law  practice  of  moving  to  set  aside  a  judgment  for  irreg- 
ularity, or  to  a  writ  of  error,  or  to  a  bill  of  review,  or  an  appeal, 
it  would  belong  to  the  latter  category,  and  the  United  States 
court  could  not  properly  entertain  jurisdiction  of  the  case. 
Otherwise  the  Circuit  Courts  of  the  United  States  would  be- 
come invested  with  power  to  control  the  proceedings  in  the  State 
courts,  or  would  have  appellate  jurisdiction  over  them  in  all  cases 
where  the  parties  are  citizens  of  different  States.  Such  a  result 
would  be  totally  inadmissible.  On  the  other  hand,  if  the  pro- 
ceedings are  tantamount  to  a  bill  in  equity  to  set  aside  a  decree 
for  fraud  in  the  obtaining  thereof,  then  they  constitute  an  original 
and  independent  proceeding,  and  according  to  the  doctrine  laid 
down  in  Gaines  v.  Fuentes,10  the  case  might  be  within  the  cogni- 
zance of  the  Federal  courts.  The  distinction  between  the  two 
classes  of  cases  may  be  somewhat  nice,  but  it  may  be  affirmed  to 
exist.  In  the  one  class  there  would  be  a  mere  revision  of  errors 
and  irregularities,  or  of  the  legality  and  correctness  of  the  judg- 
ments and  decrees  of  the  State  courts  ;  and  in  the  other  class, 
the  investigation  of  a  new  case  arising  upon  new  facts,  although 
having  relation  to  the  validity  of  an  actual  judgment  or  decree, 
or  the  party's  right  to  claim  any  benefit  by  reason  thereof." 
Proceedings  supplementary  to  execution  authorized  by  State 
statutes  against  a  judgment  debtor  or  third  persons  cannot  be 
instituted  in  or  removed  to  the  Federal  courts,  although  a  credi- 
tor's bill  may  be.11  A  petition,  after  judgment  in  a  State  court, 
for  plaintiff  in  ejectment  to  have  the  defendant's  damages  allowed 
to  him  is  a  mere  incident  to  the  ejectment  suit,  and  the  Federal 
courts  can  take  no  jurisdiction  of  it.12 

§  22.  Limitations  upon  Jurisdiction  by  Residence.  —  The  Ju- 
diciary Act  of  1887  limits  the  jurisdiction  of  the  Circuit  Courts 
of  the  United  States  as  follows :  "  But  no  person  shall  be 
arrested  in  one  district  for  trial  in  another  in  any  civil  action 
before  a  Circuit  or  District  Court;  and  no  civil  suit  shall  be 
brought  before  either  of  said  courts  against  any  person  by  any 
original  process  of  proceeding  in  any  other  district  than  that 

10  92  U.  S.  10  ;  Arrowsmith  v.  Gleason,     Buford  v.  Strother,  3  McCrary,  253  ;  s.  c. 
129  U.  S.  86.  10  Fed.  R.  400  ;  Flash  v.  Dillon,  22  Fed. 

11  Webber  v.  Humphreys,  5  Dill.  223 ;     R.  1. 

Poole   v.  Thatcherdeft,  19   Fed.   R.  49 ;        12  Chapman  v.  Barger,  4  Dill.  557. 


30  JURISDICTION.  [CHAP.  I. 

whereof  he  is  an  inhabitant;  but  where  the  jurisdiction  is 
founded  only  on  the  fact  that  the  action  is  between  citizens  of 
different  States,  suit  shall  be  brought  only  in  the  district  of  the 
residence  of  either  the  plaintiff  or  the  defendant."1  A  decision 
in  the  California  circuit  construed  this  act  as  depriving  the  Cir- 
cuit Courts  of  all  jurisdiction,  whether  originally  or  by  removal, 
over  foreign  corporations  or  other  persons  who  are  inhabitants  of 
other  districts.2  The  other  Circuit  Courts,  however,  declined  to 
follow  this  decision;3  and  it  was  finally  overruled  by  the  judges 
who  made  it.4  The  interpretation  seems  to  be  established  that, 
when  the  jurisdiction  depends  upon  the  existence  of  a  Federal 
question,  or  upon  grounds  other  than  the  citizenship  of  the 
parties,  the  defendant  must  be  sued  in  the  district  of  his  resi- 
dence;5 but  when  the  jurisdiction  depends  upon  the  citizenship 
of  the  parties,  the  suit  may  be  brought  in  the  district  in  which 
either  the  plaintiff  or  the  defendant  resides.6  Whether  a  cor- 
poration can  have  a  residence  beyond  the  territory  of  the  govern- 
ment from  which  it  derives  its  charter  is  undecided."  What  is 
the  rule  when  parties  on  the  same  side  of  the  case  reside  in 
different  districts  has  not  been  decided.  The  Revised  Statutes 
previously  provided  as  follows  :  "  When  a  State  contains  more 
than  one  district,  every  suit  not  of  a  local  nature,  in  the  Circuit 

§  22.   i  Act  of  March  3, 1887,  §  1,  24  St.  Fales  v.  Chicago,  M.  &  St.  P.  Ry.  Co., 

at  L.  552  ;  as  amended  25  St.  at  L.  434.  32  Fed.  R.  673,  E.  1).  Iowa ;  per  Shiras,  J. 

2  County  of  Yuba  v.  Pioneer  Gold  Short  v.  Chicago,  M.  &  St.  P.  Ry.,  33  Fed 
Mining  Co  ,  32  Fed.  R.  183 ;  per  Sawyer,  R.  114,  D.  Minnesota;  per  Brewer,  J. 
Field  &  Sabin,  JJ.  See  also  Hardenberg  Gavin  v.  Vance,  33  Fed.  R.  84,  W.  D 
t\  Ray,  33  Fed.  R.  812,  814  ;  per  Deady,  J.  Tennessee  ;  per  Hammond,  J. ;  W.  U.  Tel 

3  St.  Louis,  V.  &  T.  H.  R.  Co.  v.  Terre  Co.  v.  Brown,  32  Fed  R.  337,  E.  D.  Mis 
Haute  &  I.  R.  Co.,  33  Fed.  R.  385;  Pit-  souri;  per  Brewer,  J. ;  Loomis  w.  N.  Y 
kin  County  Min.  Co.  v.  Markell,  33  Fed.  &  C.  Gas  Coal  Co.,  33  Fed.  R.  353,  N.  D., 
R.  386  ;  Fales  v.  Chicago,  M.  &  St.  P.  Ry.  New  York ;  per  Coxe,  J.,  Wallace  and 
Co.,  32  Fed.  R.  673  ;  Short  v.  Chi.  M.  &  Lacombe,  JJ.,  concurring. 

St.  P.  Ry.  Co.,  33  Fed.  R.  114 ;  Gavin  v.  7  Lacombe,  J.,  in  Filli  v.  D.  L.  &  W. 

Vance,  33  Fed.  R.  84  ;  W.  U.  Tel.  Co.  v.  R.  R.  Co.,  37  Fed.  R.  65,  S.  D.  New  York, 

Brown'.  32  Fed.  R.  337.  and  Hohorst  v.  Hamburg  Amer.  Packet 

*  Wilson  v.  W.  U.  Tel.  Co.,  34  Fed.  R.  Co.,  38  Fed.  R.  273,  S.  D.  New  York,  and 

5g|  Ross,  J.,  in  Denton  v.  International  Co.  of 

5  St.  Louis,  V.  &  T.  H.  R.  Co.  ».  Terre  Mexico,  36  Fed.  R.  1,  S.  D.  California,  held 

Haute  &  I.  R.  Co.,  33  Fed.  R.  385,  386,  that  it  cannot.    Maxey,  J.,  in  Zambrino  v. 

S.  D.  Illinois  ;  per  Gresham  and  Allen,  JJ.  Galveston,  H.  &  S.  A.  Ry.  Co.,  38  Fed.  R. 

e  Pitkin  Min.  Co.  v.  Markell,  33  Fed.  449,  and  McKennan  and  Acheson,  JJ  ,  in 

R.  386,  D.  Colorado  ;  per  Hallett,  J.  ;  St.  Riddle  v.  N.  Y.  L.  E  &  W.  R.  Co.  39  Fed. 

Louis,  V.  &  T.  H.  R.  Co.  v.  Terre  Haute  R.  290,  W.  D.  Pa.,  held  that  it  can.    The 

&  I.  R.  Co.,  33  Fed.  R.  385,  386,  S.  D.  same  opinion  is  expressed  by  Judge  Speer 

Illinois  ;  per  Gresham   and  Allen,   JJ. ;  in  his  Removal  of  Causes,  p.  38. 


§  22.]  LIMITATIONS   UPON   JUKISDICTIOX    BY   RESIDENCE.  31 

or  District  Courts  thereof,  against  a  single  defendant,  inhabitant 
of  such  State,  must  be  brought  in  the  district  where  he  resides  ; 
but  if  there  are  two  or  more  defendants,  residing  in  different 
districts  of  the  State,  it  may  be  brought  in  either  district,  and  a 
duplicate  writ  may  be  issued  against  the  defendants,  directed  to 
the  marshal  of  any  other  district  in  which  any  defendant  resides. 
The  clerk  issuing  the  duplicate  writ  shall  indorse  thereon  that  it 
is  a  true  copy  of  a  writ  sued  out  of  the  court  of  the  proper  dis- 
trict ;  and  such  original  and  duplicate  writs,  when  executed  and 
returned  into  the  office  from  which  they  issue,  shall  constitute 
and  be  proceeded  on  as  one  suit;  and  upon  any  judgment  or 
decree  rendered  therein,  execution  may  be  issued,  directed  to 
the  marshal  of  any  district  in  the  same  State."  8  "  In  suits  of 
a  local  nature,  where  the  defendant  resides  in  a  different  district, 
in  the  same  State,  from  that  in  which  the  suit  is  brought,  the 
plaintiff  may  have  original  and  final  process  against  him,  directed 
to  the  marshal  of  the  district  in  which  he  resides."9  "  Any  suit 
of  a  local  nature,  at  law  or  in  equity,  where  the  land  or  other 
subject-matter  of  a  fixed  character  lies  partly  in  one  district  and 
partly  in  another,  within  the  same  State,  may  be  brought  in  the 
circuit  or  district  court  of  either  district;  and  the  court  in  which 
it  is  brought  shall  have  jurisdiction  to  hear  and  decide  it,  and  to 
cause  mesne  or  final  process  to  be  issued  and  executed,  as  fully 
as  if  the  said  subject-matter  were  wholly  the  district  for  which 
such  court  is  constituted."10  Prior  to  the  act  of  1887  special 
statutes  regulated  in  this  respect  the  Federal  courts  in  the  dis- 
tricts of  Alabama,  Georgia,  Indiana,  Iowa,  Kentucky,  Michigan, 
Missouri,  Ohio,  and  Tennessee.11  Recent  statutes  also  regulate 
the  Federal  courts  in  the  northeastern  division  of  the  south- 
ern district  of  Georgia,  and  the  districts  of  Louisiana  and  of 
Kentucky.12 

8  U.  S.  R.  S.,  §  740.  in  said  northeastern  division  of  the  south- 

9  U.  S.  R.  S.,  §  741.  ern  district  of  Georgia.     Rut  if  there  are 

10  U.  S.  R.  S.,  §  742.  two  or  more  defendants,  some  residing  in 

11  For  note  explaining  the  limitations  the  northeastern  division  and  others  re- 
upon  jurisdiction  by  residence  in  the  siding  in  any  other  portion  of  said  south- 
States  here  referred  to,  see  the  end  of  ern  district  of  Georgia,  the  action  may 
this  chapter  (p.  58).  be  brought  in  any  of   the    divisions   in 

12  The  act  creating  the  northeastern  which  any  one  of  the  defendants  resides, 
division  of  the  southern  district  of  Georgia  When  the  defendant  is  a  non-resident  of 
provides  that  "  all  civil  suits  not  of  a  local  either  division  action  may  be  brought  in 
nature  must  be  brought  in  said  northeast-  that  division  where  the  defendant  may 
ern  division,  where  the  defendant  resides  be  found.     Cases  removed  from  any  of 


32 


JURISDICTION. 


[CHAP.  I. 


§  23.  Special  Limitation  upon  Jurisdiction  of  Circuit  Court  for 
Southern  District  of  New  York.  —  The  Revised  Statutes  provide 
that  "  the  original  jurisdiction  of  the  Circuit  Court  for  the 
Southern  District  of  New  York  shall  not  be  construed  to  extend 
to  causes  of  action  arising  within  the  Northern  District  of  said 
State."  1  This  does  not  exclude  from  the  jurisdiction  of  the 
court  causes  of  action  that  arise  without  the  State.2  It  has 
been  held  that  this  forbids  the  issue  by  that  court  of  an  injunction 
to  prevent  the  infringement  of  a  patent  when  the  sole  previous 
cases  of  infringement  occurred  in  the  northern  district  of  New 
York.3 

§  24.  Suits  by  Assignees. —  The  statutes  further  limit  the  juris- 
diction of  the  courts  of  the  United  States  by  providing  that  no 


the  courts  of  the  State  of  Georgia  to  the 
circuit  courts  of  the  United  States  shall 
be  removed  to  the  circuit  court  in  the 
division  in  which  said  court  is  held."  25 
St.  at  L.  ch.  168.  p.  071. 

The  act  dividing  the  eastern  district 
of  Louisiana  into  two  divisions  provides, 
"  that  if  there  be  more  than  one  defend- 
ant and  they  reside  in  different  divisions 
of  the  district,  the  plaintiff  may  sue  in 
either  division,  and  send  duplicate  writ 
or  writs  to  the  other  defendants,  and  the 
said  writs,  when  executed  and  returned 
into  the  court  from  which  they  issued, 
shall  constitute  one  suit  and  be  proceeded 
in  accordingly"  (25  St.  at  L.  ch.  869, 
§  3,  p.  438) ;  "that  all  causes  triable  in 
either  of  the  courts  of  said  eastern  dis- 
trict shall  be  tried  in  the  division  to 
which  the  process  is  returnable  under  the 
provisions  of  this  act,  unless  by  consent 
of  all  parties  the  cause  be  removed  to 
some  other  division  of  said  district."  25 
St.  at  L.  ch.  869,  §4,  p.  438.  "Causes 
removed  from  any  court  of  the  State  of 
Louisiana  in  the  circuit  court  of  the 
United  States  within  said  eastern  district 
shall  be  removed  to  the  circuit  court  in 
the  division  in  which  such  State  court 
is  held."  25  St.  at  L  ch.  869,  §  8,  p. 
438. 

The  act  dividing  the  western  district 
of  Louisiana  into  two  divisions  provides  : 
"  That  if  there  be  more  than  one  defend- 
ant and  they  reside  in  different  divisions 
of  the  district,  the  plaintiff  may  sue  in 


either  division,  and  send  duplicate  writ 
or  writs  to  the  other  defendants ;  and 
the  said  writs  when  executed  and  re- 
turned into  the  court  from  which  they 
issued,  shall  constitute  one  suit  and  be 
proceeded  in  accordingly."  25  St.  at  L. 
ch.  789,  §  2,  p.  388.  "  That  all  causes 
triable  in  either  of  the  courts  of  said 
western  district,  shall  be  tried  in  the  di- 
vision to  which  the  process  is  returnable 
under  the  provisions  of  this  act,  unless 
by  consent  of  all  parties,  the  cause  be 
removed  to  some  other  division  of  said 
district."  25  St.  at  L  ch.  389,  §  3,  p.  388. 
"  That  causes  removed  from  any  court 
of  the  State  of  Louisiana  into  the  circuit 
court  of  the  United  States  within  said 
western  district,  shall  be  removed  to  the 
circuit  court  in  the  division  in  which 
such  State  court  is  held."  25  St.  at  L. 
ch.  789,  §  7,  p.  388. 

The  act  creating  the  Owensborough 
division  of  the  district  of  Kentucky  pro- 
vides that  "  where  one  or  more  defendants 
in  any  civil  cause  shall  reside  in  said  di- 
vision, and  one  or  more  defendants  to 
such  cause  shall  reside  out  of  said  division 
but  in  said  district,  then  the  plaintiff  may 
institute  his  action  either  in  the  court 
having  jurisdiction  over  the  latter  or  in 
said  division."  25  St.  at  L.  ch.  792,  §  2, 
p.  390. 

§  23.  !  U.  S.  R.  S.  §  657. 

2  Wheeler  v.  McCormick,  8  Blatchf. 
268. 

3  Black  v.  Thome,  10  Blatchf.  66. 


§  24]  SUITS   BY   ASSIGNEES.  33 

Circuit  or  District  Court  shall  "  have   cognizance  of  any  suit, 
except  upon  foreign  bills  of  exchange,  to  recover  the  contents 
of  any  promissory  note  or  other  chose  in  action  in  favor  of  any 
assignee,  or  of  any  subsequent  holder,  if  such   instrument  be 
payable  to  bearer  and  be  not  made  by  any  corporation,  unless 
such  suit  might  have  been  prosecuted  in  such  court  to  recover 
the  said  contents  if  no  assignment  or  transfer  had  been  made.*' 1 
A  check  is  a  bill  of  exchange.2     A  draft  drawn  in  one  on  another 
of  the  United  States  is  a  foreign  bill  of  exchange.3     The  phrase 
"  suit  to  recover  the  contents  of  a  chose  in  action  "  includes  suits 
to  recover  debts,  or  any  claims  for  damages  for  breach  of  contract 
or  for  torts  connected  with  contract.4     The  phrase  also  includes 
suits  to  foreclose  mortgages5  and  to  enforce  the  specific  per- 
formance of  contracts.6     The  phrase  does  not  include  a  suit  of 
replevin 7  or  ejectment,8  or  otherwise  brought  to  recover  prop- 
erty taken  by  the  defendant  before  the  assignment  of  the  title  to 
the  plaintiff;  nor  a  suit  upon  a  judgment,  though  the  suit  in 
which  the  judgment  was  recovered  could  not  have  been  brought 
in  a  Federal  court.9     It  has  been  suggested  that  the  restriction 
applies  only  to  contracts  "  which  may  be  properly  said  to  have 
contents,"  not  to  "  mere  naked  rights  of  action  founded  on  some 
wrongful  act,  —  some  neglect  of  duty  to  which  the  law  attaches 
damages,"  such  as  a  failure  to  protest  a  note  ;   but  to  "  rights  of 
action  founded    on  contracts  which  contain  within  themselves 
some  promise  or  duty  to  be  performed."10     It  has  been  held  that 
an  indorsee,  who  is  a  citizen  of  the  same  State  as  the  maker  of  the 
note,  may  sue  his  immediate  indorser  in  a  Federal  court,  if  that 
indorser  be  a  citizen  of  a  different  State  ;n  but  that  when  in  a 
suit  against  a  remote  indorser  the  plaintiff  derives  his  title  through 
a  citizen  of  the  same  State  as  the  defendant,  there  is  no  jurisdic- 
tion, on  account  of  the  difference  of  citizenship  between  the  latter 

§  24.   i  Act  of  March  3,  1887,  §  1 ;  24  *  Sheldon  v.  Gill,  8  How.  441. 

St.  at  L.  552.  6  Corbin  v.  County  of  Black  Hawk,  105 

2  Bull   v.  Bank  of  Kasson,  123  U.  S.  U.S.  659,665;  Shoecraf  t  v.  Bloxham,  124 
105.  U.  S.  730. 

3  Buckner  v.  Finley,  2  Pet.  586,  593.  1  Deshler  v.  Dodge,  16  How.  622.  631. 
<  Bushnell    v    Kennedy,  9   Wall.  387,         *  Smith  v.  Kcrnochen,  7  How.  198. 

390,  Sere  v.  Pitot,   6  Cranch,  332,  335,  »  Bean  v.  Smith,  2  Mason,  252,  269; 

336,  Sheldon  v.  Gili,  8  How.  441,  449,  Ober  v.  Gallagher,  93  U.  S.  199,  206. 

450;  Tredway  v.  Sanger,  107  U.  S.  323,  i°  Barney  v.  Globe  Bank,  5  Blatch.  107. 

323;  Mersman  v.  Werges,  112  U.  S.  139,  See,   however,   Bushnell   v.    Kennedy,  9 

143;    Corbin  v.  County  of  Black  Hawk,  Wall.  387,  391. 

105  U.  S.  659,  665,  666.  "  Young  v.  Bryan,  6  Wheat.  146. 

3 


34  JURISDICTION.  [CHAP.  I. 

and  the  plaintiff.12  Assignees  in  insolvency 13  are  included  within 
this  restriction;  but  receivers14  and  executors  and  administra- 
tors 15  are  not.  It  has  been  held  that  the  restriction  does  not 
apply  when  the  only  reason  why  the  assignor  could  not  have  sued 
was  that  his  claim  was  less  in  value  than  the  jurisdictional 
amount.16 

§  25.  Jurisdiction  of  the  District  Courts  of  the  United  States. 
—  The  jurisdiction  of  the  District  Courts  of  the  United  States  in 
civil  causes  extends  to  suits  for  penalties  and  forfeitures  incurred 
under  any  law  of  the  United  States  ;  suits  at  common  law  brought 
by  the  United  States  or  any  officer  thereof,  authorized  by  law  to 
sue  ;  suits  in  equity  to  enforce  the  lien  of  the  United  States  upon 
any  real  estate  for  any  internal  revenue  tax,  or  to  subject  to  the 
payment  of  any  such  tax  any  real  estate  owned  by  the  delinquent, 
or  in  which  he  has  any  right,  title,  or  interest ;  suits  for  the  recov- 
ery of  any  forfeiture  or  damages  under  Section  3490  of  the  Revised 
Statutes ;  causes  of  action  arising  under  the  postal  laws  of  the 
United  States  ;  civil  causes  of  admiralty  and  maritime  jurisdiction, 
and  all  seizures  on  land  and  water  not  within  admiralty  and  mar- 
itime jurisdiction  ;  prizes  on  land  and  water ;  suits  brought  by 
the  assignees  of  debentures  for  drawback  of  duties  to  enforce  such 
debentures ;  all  suits  under  the  civil  rights  laws ;  suits  to  recover 
possession  of  any  office  except  that  of  presidential  elector  or  a 
legislative  office,  wherein  the  sole  question  touching  the  title  to 
such  office  arises  out  of  the  denial  of  the  right  of  a  citizen  to  vote 
on  account  of  race,  color,  or  previous  condition  of  servitude  ;  pro- 
ceedings by  quo  warranto,  prosecuted  by  a  district  attorney  of 
the  United  States,  for  the  removal  from  office  of  a  person  dis- 
qualified by  the  Fourteenth  Amendment  to  the  Constitution ; 
suits  by  aliens  for  torts  only  in  violation  of  the  law  of  nations 
or  of  a  treaty  of  the  United  States  ;  suits  against  consuls  or 
vice-consuls ;  and  all  matters  and  proceedings  in  bankruptcy ; l 
suits  against  the  United  States  to  collect  claims  not  exceeding 
one  thousand  dollars  for  money  only,  founded  upon  the  Constitu- 
tion of  the  United  States  or  of  any  law  of  Congress,  except  for 

12  Turner  v.  Bank  of  North  America,  Chappedelaine  v.  Dechenaux,  4  Cranch, 

4  Dall.  8  ;  Mollan  v.  Torrance,  9  Wheat.  306;  Childras  v.  Emory,  8  Wheat.  642. 
537,  538.  16  Bernheira  v.  Birnbaum,  30  Fed.  R. 

"  Sere  v.  Pitot,  6  Cranch,  332,  336.  885,  887.     See  also  Hammond  v.  Cleave- 

"  Davies  v.  Lathrop,  12  Fed.  R.  353.  land,  23  Fed.  R.  1. 

15  Sere  v.  Pitot,  6  Cranch,  332,  336 ;         §  25.   »  U.  S.  R.  S.  §  563. 


§  26.]  TERRITORIAL   JURISDICTION   AND   TERMS   OF   COURTS.  35 

pensions,  or  upon  any  contract  expressed  or  implied  with  the 
government  of  the  United  States,  or  for  damages,  liquidated  or 
unliquidated,  in  cases  not  sounding  in  tort,  in  respect  of  which 
claims  the  plaintiff  would  be  entitled  to  redress  against  the 
United  States  in  a  court  of  law,  equity  or  admiralty,  if  the  United 
States  were  suable,  except  war  claims  which,  before  March  3, 
1887,  were  rejected  or  reported  on  adversely  by  any  court,  de- 
partment, or  commission  authorized  to  hear  and  determine  the 
same  ;2  and  proceedings  to  condemn  for  national  public  purposes 
land  situated  within  their  respective  districts.3 

§  26.  Territorial  Jurisdiction  and  Terms  of  the  Supreme,  Circuit, 
and  District  Courts  of  the  United  States.  —  The  Supreme  Court  has 
jurisdiction  throughout  the  United  States.  It  holds  one  term 
annually  at  Washington,  commencing  on  the  second  Monday  of 
October.1  It  may  also  hold  adjourned  and  special  terms.2  In 
case  of  a  contagious  or  epidemic  disease,  a  term  may  be  held  at 
another  place.3  There  is  a  Circuit  Court  in  each  judicial  dis- 
trict of  the  United  States.4  There  is  a  District  Court  in  each 
judicial  district  of  the  United  States.  The  judicial  districts  and 
the  terms  of  the  Circuit  and  District  Courts  held  therein  are  as 
follows :  — 

In  Alabama,  three  districts ;  the  southern,  middle,  and  north- 
ern. The  southern  district  of  Alabama  includes  the  counties  of 
Mobile,  Washington,  Baldwin,  Clarke,  Marengo,  Wilcox,  Monroe, 
and  Coneculi.5  The  terms  for  this  district  of  both  the  Circuit 
and  District  Courts  are  held  at  the  city  of  Mobile  on  the  fourth 
Monday  of  December,  and  the  first  Monday  in  June.6  A  Circuit 
and  a  District  Court  for  the  middle  district  of  Alabama,  are 
held  at  the  city  of  Montgomery.  This  includes  the  counties 
of  Montgomery,  Autauga,  Coosa,  Tallapoosa,  Chambers,  Ran- 
dolph, Macon,  Russell,  Barbour,  Pike,  Henry,  Dale,  Coffee, 
Covington,  Lowndes,  Dallas,  Perry,  and  Butler.  The  terms 
for  this  district  of  both  Circuit  and  District  Courts  are  held 
at  the  city  of  Montgomery  on  the  first  Mondays  of  May  and 

2  24  St.  at  L.  505;  United   States  v.    25  St.  at  L.  ch.  113,  p.  655;  25  St.  at  L. 

Jones,  131  U.  S.  1.  ch.  180,  p.  682. 

8  25  St.  at  L.  ch.  728,  p.  357.  6  U.  S.  R.  S.  §§  532,  608;  Act  of  June 

§  26.   i  U.  S.  R.  S.  §  684.  22,  1874,  ch.  401,  §  5;  18  St.  at  L.  195; 

2  U.  S.  R.  S.  §§  684-686.  U.  S.  R.  S.  1st  Supp.  pp.  87,  88  ;  Act  of 

3  U.  S.  R.  S.  §  4799.  May  2,  1884,  ch.  38 ;  23  St.  at  L.  18. 

4  U.  S.  R.  S.  §  608  ;  18  St.  at  L.  195;        6  Act  of  June  22, 1874,  ch.  401,  §  6,  supra. 


34 


JURISDICTION. 


[CHAP.  I. 


and  the  plaintiff.12  Assignees  in  insolvency 13  are  included  within 
this  restriction;  but  receivers14  and  executors  and  administra- 
tors 15  are  not.  It  has  been  held  that  the  restriction  does  not 
apply  when  the  only  reason  why  the  assignor  could  not  have  sued 
was  that  his  claim  was  less  in  value  than  the  jurisdictional 
amount.16 

§  25.  Jurisdiction  of  the  District  Courts  of  the  United  States. 
—  The  jurisdiction  of  the  District  Courts  of  the  United  States  in 
civil  causes  extends  to  suits  for  penalties  and  forfeitures  incurred 
under  any  law  of  the  United  States  ;  suits  at  common  law  brought 
by  the  United  States  or  any  officer  thereof,  authorized  by  law  to 
sue  ;  suits  in  equity  to  enforce  the  lien  of  the  United  States  upon 
any  real  estate  for  any  internal  revenue  tax,  or  to  subject  to  the 
payment  of  any  such  tax  any  real  estate  owned  by  the  delinquent, 
or  in  which  he  has  any  right,  title,  or  interest ;  suits  for  the  recov- 
ery of  any  forfeiture  or  damages  under  Section  3490  of  the  Revised 
Statutes ;  causes  of  action  arising  under  the  postal  laws  of  the 
United  States  ;  civil  causes  of  admiralty  and  maritime  jurisdiction, 
and  all  seizures  on  land  and  water  not  within  admiralty  and  mar- 
itime jurisdiction  ;  prizes  on  land  and  water ;  suits  brought  by 
the  assignees  of  debentures  for  drawback  of  duties  to  enforce  such 
debentures  ;  all  suits  under  the  civil  rights  laws ;  suits  to  recover 
possession  of  any  office  except  that  of  presidential  elector  or  a 
legislative  office,  wherein  the  sole  question  touching  the  title  to 
such  office  arises  out  of  the  denial  of  the  right  of  a  citizen  to  vote 
on  account  of  race,  color,  or  previous  condition  of  servitude  ;  pro- 
ceedings by  quo  warranto,  prosecuted  by  a  district  attorney  of 
the  United  States,  for  the  removal  from  office  of  a  person  dis- 
qualified by  the  Fourteenth  Amendment  to  the  Constitution ; 
suits  by  aliens  for  torts  only  in  violation  of  the  law  of  nations 
or  of  a  treaty  of  the  United  States  ;  suits  against  consuls  or 
vice-consuls  ;  and  all  matters  and  proceedings  in  bankruptcy ; 1 
suits  against  the  United  States  to  collect  claims  not  exceeding 
one  thousand  dollars  for  money  only,  founded  upon  the  Constitu- 
tion of  the  United  States  or  of  any  law  of  Congress,  except  for 


12  Turner  v.  Bank  of  North  America,     Chappedelaine  v.  Dechenaux,  4  Cranch, 


4  Dall.  8  ;  Mollan  v.  Torrance,  9  Wheat. 
537,  538. 

13  Sere  v.  Pitot,  6  Cranch,  332,  336. 

14  Davies  v.  Lathrop,  12  Fed.  R.  353. 

15  Sere  v.  Pitot,  6  Cranch,  332,  336; 


306;  Childras  v.  Emory,  8  Wheat.  642. 

16  Bernheim  v.  Birnbaum,  30  Fed.  R. 
885,  887.  See  also  Hammond  v.  Cleave- 
land,  23  Fed.  R.  1. 

§  25.   *  U.  S.  R.  S.  §  563. 


§  26.]      DISTRICTS   OF   COLORADO,  CONNECTICUT,  DELAWARE,  ETC.      37 

October.14  By  a  recent  statute,  "  The  Texarkana  division  of 
the  eastern  judicial  district  of  Arkansas  "  is  established,  in  which 
terms  of  Circuit  and  District  Courts  of  this  district  are  to  be 
held  at  Texarkana  on  the  first  Mondays  of  January  and  July, 
and  which  includes  the  counties  of  Columbia,  Howard,  Hemp- 
stead, Lafayette,  Little  River,  Miller,  Nevada,  Ouachita,  Pike, 
and  Sevier.15 

In  California,  two  districts,  the  northern  and  the  southern.  The 
southern  district  of  California  contains  the  counties  of  San  Diego, 
San  Bernardino,  Los  Angeles,  Ventura,  Santa  Barbara,  San  Luis 
Obispo,  Fresno,  Tulare,  and  Kern.  The  remainder  of  California 
is  comprised  in  the  southern  district.  In  the  southern  district, 
terms  of  Circuit  and  of  District  Courts  respectively  are  held  at  Los 
Angeles  on  the  second  Monday  of  August,  and  the  second  Mon- 
day of  January.  In  the  northern  district,  terms  of  both  Circuit 
and  District  Courts  are  held  at  San  Francisco,  on  the  first  Monday 
in  February,  the  second  Monday  in  July,  and  the  fourth  Monday 
in  November.16  Prior  to  the  division  of  the  original  district  of 
California,  provision  was  made  for  holding  special  sessions  of  the 
Circuit  Court.17 

Colorado  constitutes  one  judicial  district.18  Terms  of  Circuit 
and  District  Courts  for  this  district  are  held  :  at  Denver,  on  the 
first  Tuesdays  in  May  and  November  ;  at  Pueblo,  on  the  first 
Tuesday  in  April ;  and  at  Del  Norte  on  the  first  Tuesday  in 
August.19 

Connecticut  constitutes  one  judicial  district.20  District  Courts 
are  held  at  New  Haven  on  the  fourth  Tuesday  in  February  ;  at 
Hartford  on  the  fourth  Tuesday  in  May  ;  at  New  Haven  on  the 
fourth  Tuesday  in  August,21  and  at  Hartford  on  the  first  Tuesday 
of  December.22  A  Circuit  Court  for  this  district  is  held  at  New 
Haven  on  the  fourth  Tuesday  in  April,  and  at  Hartford  on  the 
third  Tuesday  in  September.23 

1*  Act  of  Feb.  17,  1887,  ch.  139  (24  St.  «  U.  S.  R.  S.  §  664,  and  compare  with 

at  L.  406)  ;  U.  S.  It.  S.  §  572,  as  amended  it  the  act  of  Aug.  5,  1886,  ch.  920. 

bv  act  of  Jan.  31,  1877,  ch.  41  (19  St.  at  L.  w  Act  of  June  26,  1876,  ch.  147  (19  St. 

230 ;  U.  S.  R.  S.  1st  Supp.  262,  263).  at  L.  61 ;  U.  S.  R.  S.  1st  Supp.  215,  216). 

15  Act  of  Feb.  28,  1887  (24  St.  at  L.  »  Act  of  Aug.  3,  1886,  ch.  848  (24  St. 
428).  at  L.  214). 

16  Act  of  Aug.  5,  1886,  ch.  928  (24  St.  20  U.  S.  R.  S.  §  531. 
at  L.  308-310),  superseding  in  this  respect  21  U.  S.  R.  S.  §  572. 

U.  S.  R.  S.  §§  531,  572,  658,  act  of  June        22  Act  of  June  30,  1879,  ch.  49  (21  St. 
16,  1874,  ch.*287,  and  act  of  Feb.  18, 1876,     at  L.  41 ;  U.  S.  R.  S.  1st  Supp.  497). 
ch.  6.  ffl  U.  S.  R.  S.  §  658. 


38  JURISDICTION.  [CHAP.  I. 

Delaware  constitutes  one  judicial  district.24  The  District  Court 
is  held  at  Wilmington  on  the  second  Tuesdays  in  January,  April, 
June,  and  September.25  The  Circuit  Court  is  held  at  Wilmington 
on  the  third  Tuesdays  in  June  and  October.26 

In  Florida,  two  districts,  the  northern  and  southern.  The 
southern  district  embraces  the  counties  of  Hernando,  Hills- 
borough, Polk,  Manatee,  and  Monroe ;  the  remaining  territory 
constituting  the  northern  district.27  In  the  southern  district, 
Circuit  and  District  Courts  are  held  at  Tampa,  on  the  second 
Monday  in  February.28  A  Circuit29  and  District30  Court  for  this 
district  is  also  held  at  Key  West  on  the  first  Mondays  of  May  and 
November.  In  the  northern  district,  both  the  District  and  Circuit 
Courts  are  held  at  Tallahassee  on  the  first  Monday  in  February ; 
at  Pensacola,  on  the  first  Monday  in  March  ;  and  at  Jacksonville, 
on  the  first  Monday  in  December.31 

In  Georgia,  two  districts,  the  northern  and  southern.  The 
northern  district  of  Georgia  originally  included  the  counties  of 
Troup,  Meriwether,  Pike,  Butts,  Jasper,  Morgan,  Green,  Talia- 
ferro, Wilkes,  and  Lincoln,  as  they  existed  Aug.  11, 1848,  with  all 
the  counties  north  of  them.  Pike,  Butts,  Jasper,  Lincoln,  Wilkes, 
and  Taliaferro  have  since  been  annexed  to  the  southern  district, 
which  is  now  divided  into  eastern,  northeastern,  and  western 
divisions.  The  western  division  consists  of  forty-three  counties, 
to  wit:  Bibb,  Monroe,  Jones,  Twiggs,  Houston,  Crawford,  Bald- 
win, Wilkinson,  Laurens,  Pulaski,  Dooly,  Macon,  Taylor,  Upson, 
Pike,  Butts,  Jasper,  Putnam,  Hancock,  Warren,  Dodge,  Wilcox, 
Telfair,  Sumter,  Schley,  Marion,  Talbot,  Harris,  Muscogee,  Chat- 
tahoochee, Stewart,  Webster,  Lee,  Terrell,  Randolph,  Quitman, 
Clay,  Calhoun,  Dougherty,  Baker,  Early,  Miller,  and  Mitchell.32 
The  eastern  division  consists  of  the  remaining  counties  of  the 
district.33  The  counties  of  Warren,  Glascock,  McDuffie,  Colum- 
bia, Richmond,  Burke,  Jefferson,  Johnson,  Washington,  Lin- 
coln, Wilkes,  and  Taliaferro  compose  the  northeastern  division.34 

2*  U.  S.  R.  S.  §  531.  »  TJ.  S.  R.  S.  §  658. 

25  U.  S.  R.  S.  §  572.  m  TJr  S.  R.  S.  §  572. 

26  U.  S.  R  S.  §  658.  31  U.  S.  R.  S.  §§  572,  658. 

27  Act  of  Feb.  3,  1879,  ch.  43  (20  St.  at  32  21  St.  at  L.  ch.  17,  p.  62,  U.  S.  R.  S. 
L.  280 ;  U.  S.  R.  S.  1st  Supp.  407),  super-  1st  Supp.  p.  507,  superseding,  iu  this  re- 
seding  U.  S.  R.  S.  §  534.  speet,  U.  S.  R.  S.  §  535. 

28  Act  of  June  30,  1886,  ch.  581  (24  St.  33  U.  S.  R.  S.  §  572 ;  25  St.  at  L.  ch. 
at  L.  106),  repealing  part  of  the  act  of  205,  p.  690. 

Feb.  3,  1879,  supra.  u  25  St.  at  L.  ch.  168,  p.  671. 


§  26.]  DISTRICTS   OF   ILLINOIS   AND   INDIANA.  39 

In  the  northern  district,  terms  of  both  courts  are  held  at  At- 
lanta, on  the  second  Monday  in  March,35  and  on  the  first  Monday 
in  October.36  In  the  southern  district,  terms  of  the  District  Court 
are  held  at  Savannah  on  the  second  Tuesdays  in  February,  May, 
August,  and  November,37  and  of  the  Circuit  Court  on  the  second 
Monday  of  April  and  the  Thursday  after  the  first  Monday  in 
November,38  at  Macon,  of  both  courts  on  the  first  Mondays  of 
May  and  October ; 39  and  at  Augusta  of  both  courts  on  the  first 
Monday  of  April  and  the  third  Monday  of  November.40 

In  Illinois,  two  districts,  the  northern  and  southern.  The 
northern  district  of  Illinois  includes  the  counties  of  McDonough, 
Henderson,  Warren,  Fulton,  Knox,  Peoria,  Tazewell,  Woodford, 
Livingston,  and  Iroquois,  with  all  the  counties  north  of  them. 
The  southern  district  of  Illinois  includes  the  remaining  counties 
of  the  State.41  The  northern  district  is  divided  into  two  divisions, 
known  as  the  northern  and  southern  divisions  of  the  northern 
district  of  Illinois.  The  southern  division  includes  the  counties 
of  Peoria,  Stark,  Henry,  Rock  Island,  Mercer,  Henderson,  War- 
ren, Knox,  McDonough,  Fulton,  Putnam,  Marshall,  Woodford, 
Tazewell,  Livingston,  and  Iroquois.  The  northern  division 
includes  the  remaining  counties  of  the  northern  district.42 

Terms  of  both  the  Circuit  and  District  Courts  for  the  northern 
division  of  the  northern  district  of  Illinois  are  held  at  Chicago 
on  the  first  Monday  in  July  and  the  third  Monday  in  December  ; 43 
and  for  the  southern  division  of  the  northern  district  at  Peoria 
on  the  third  Mondays  of  April  and  October.44  Terms  of  both 
courts  in  the  southern  district  of  Illinois  are  held  at  Spring- 
field on  the  first  Mondays  in  January  and  June,45  and,  of  the 
District  Court  alone,  at  Cairo  on  the  first  Mondays  of  March 
and  October.46 

Indiana  constitutes  one  judicial  district 47  Terms  of  both 
Circuit  and  District  Courts  are  held  :  at  Indianapolis,  on  the 
first  Tuesdays   in    May    and   November;    at   New   Albany,    on 

85  U.  S.  R.  S.  §  658.  «  U.  S.  R.  S.  §  536,  as  amended  by  act  of 

36  Act  of  June  20,  1884,  ch.  106  (23  St.  March  2,  1887,  ch.  315  (24  St.  at  L.  442). 

at  L.  50),  amending  §§  572,  658  of  the        *"  Act  of  March  2,  1887,  supra. 

Rev.  Sts.  4S  U.  S.  R.  S.  §§  572,  658. 

*  U.  S.  R.  S.  §  572.  «  Act  of  March  2,  1887,  ch.  315,  §  3, 

88  U.  S.  It.  S.  §  658.  supra. 

89  21  St.  at  L.  ch.  17,  p.  82,  U.  S.  R.  S.        *5  U.  S.  R  S.  §§  572,  658. 
1st  Supp.  507.  *>  U.  S.  R.  S.  §  572. 

40  25  St.  at  L.  ch.  168,  p.  671.  4;  U.  S.  R.  S.  §  531. 


40  JURISDICTION.  [CHAP.  I. 

the  first  Mondays  in  January  and  July ; 48  at  Evansville,  on  the 
first  Mondays  of  April  and  October ; 49  at  Fort  Wayne,  on 
the  second  Tuesdaj's  in  June  and  December,  in  each  year ;  ^  and 
also  twice  a  year  at  Fort  Wapne,  at  such  time  as  the  judges  of  said 
courts  may  designate.51 

In  Iowa,  two  districts,  the  northern  and  southern.  The  coun- 
ties of  Clinton,  Jones,  Linn,  Benton,  Black  Hawk,  Grundy, 
Harding,  Hamilton,  Webster,  Calhoun,  Sac,  Ida,  Monona,  and 
all  the  counties  north  of  them,  constitute  the  northern  district 
of  Iowa.  The  remaining  counties  of  the  State  constitute  the 
southern  district.52  For  the  purposes  of  holding  terms  of  court, 
the  Northern  District  of  Iowa  is  divided  into  three  divisions, — 
known  as  the  "  Eastern,"  "  Central,"  and  "  Western  "  divisions 
of  the  northern  district  of  Iowa.  The  Eastern  Division  includes 
the  counties  of  Clinton,  Jackson,  Jones,  Linn,  Benton,  Black 
Hawk,  Buchanan,  Delaware,  Dubuque,  Clayton,  Fayette,  Bre- 
mer, Floyd,  Chickasaw,  Mitchell,  Howard,  Winneshiek,  and 
Allamakee.53  In  this  division,  both  Circuit  and  District  Courts 
are  held,  at  Dubuque,  on  the  first  Tuesday  in  April  and  the 
fourth  Tuesday  in  November  of  each  year.54  The  Central  Division 
includes  the  counties  of  Grundy,  Hardin,  Hamilton,  Webster, 
Calhoun,  Pocahontas,  Palo  Alto,  Emmett,  Kossuth,  Humboldt, 
Wright,  Hancock,  Winnebago,  Worth,  Cerro  Gordo,  Franklin, 
and  Butler.53  Terms  of  both  Circuit  and  District  Courts  in  this 
division  are  held  at  Fort  Dodge55  on  the  second  Tuesday  of 
November  and  first  Tuesday  of  June.54  The  Western  Division  in- 
cludes the  counties  of  Monona,  Woodbury,  Plymouth,  Sioux, 
Lyon,  Osceola,  O'Brien,  Cherokee,  Ida,  Sac,  Buena  Vista,  Clay, 
and  Dickinson.52  Terms  of  both  Circuit  and  District  Courts  in 
this  division  are  held  at  Sioux  City,  on  the  first  Tuesdays  of  May 
and  October;  at  Fort  Dodge  on  the  second  Tuesday  of  November 
and  the  first  Tuesday  of  June  ;  and  at  Dubuque  on  the  fourth 
Tuesday  of  November  and  first  Tuesday  of  April.54 

48  U.  S.  R.  S.  §§  572,  658.  at  L.  172),  superseding,   in  this  respect, 

49  Act  of  June  23,  1874,  ch.  463  (18  U.  S.  R.  S.  §  531;  Act  of  June  4,  1880, 
St.  at  L.  251;  U.  S.  R.  S.  1st  Supp.  ch.  120  (21  St.  at  L.  155;  U.  S.  R.  S.  1st 
103).  Supp.  536). 

so  Act  of  March  3,  1881  (21  St.  at  L.        53  Act  of  July  20,  1882,  ch.  312,  §  5. 
571 ;  U.  S.  R.  S.  1st  Supp.  615.  54  25  S.  at  L.  87. 

51  Act  of  June  18, 1878,  ch.  269  (20  St.        65  Act  of  July  20,  1882,  ch.  312  (22  St. 

atL.  166  ;  U.  S.  R.  S.  1st  Supp.  367).  at  L.  172.) 

62  Act  of  July  20, 1882,  ch.  312  (22  St. 


§  26.]  DISTRICTS    OF   IOWA,   KANSAS,   AND    KENTUCKY.  41 

For  the  purposes  of  holding  terms  of  court  the  Southern 
District  of  Iowa  is  divided  into  three  divisions,  known  as  the 
eastern,  central,  and  western  divisions. 

The  Eastern  Division  includes  the  counties  of  Scott,  Cedar, 
Muscatine,  Washington,  Louisa,  Keokuk,  Appanoose,  Davis, 
Wapello,  Jefferson,  Van  Buren,  Henry,  Des  Moines,  and  Lee.56 
Terms  of  both  Circuit  and  District  courts  in  this  division  are 
held,  at  Keokuk,  on  the  third  Tuesdays  of  January  and  June.57 
The  Central  Division  includes  the  counties  of  Johnson,  Iowa, 
Poweshiek,  Mahaska,  Jasper,  Tama,  Marshall,  Story,  Boone, 
Greene,  Guthrie,  Adair,  Dallas,  Polk,  Madison,  Warren,  Marion, 
Clark,  Lucas,  Decatur,  Monroe,  and  Wayne.56  Terms  of  both  Cir- 
cuit and  District  Courts  in  this  division  are  held  at  Des  Moines,56  on 
the  second  Tuesday  in  May  and  the  third  Tuesday  in  October.58 
The  Western  Division  includes  the  counties  of  Carroll,  Crawford, 
Harrison,  Shelby,  Audubon,  Cass,  Pottawattamie,  Mills,  Mont- 
gomery, Adams,  Union,  Ringgold,  Taylor,  Page,  and  Fremont.56 
Terms  of  both  Circuit  and  District  courts  in  this  division  are 
held,  at  Council  Bluffs,56  on  the  fourth  Mondays  of  March  and 
September.57 

Kansas  constitutes  one  judicial  district.59  The  terms  of  the 
District  Court  for  Kansas  are  held  as  follows :  At  Topeka,  on 
the  second  Monday  in  April ;  at  Salina,  on  the  second  Monday  of 
May ;  at  Leavenworth,  on  the  second  Monday  of  October ;  at 
Fort  Scott,  on  the  second  Monday  of  January.60  At  Salina  no 
case  can  be  tried  except  by  consent  or  special  order.61  The 
terms  of  the  Circuit  Court  for  the  district  of  Kansas  are  held  as 
follows:  At  Topeka,  on  the  fourth  Monday  of  November;  at 
Leavenworth,  on  the  first  Monday  in  June;62  at  Fort  Scott,  on 
the  second  Monday  of  January.63 

Kentucky  constitutes  one  district.64  This  is  divided  into  two 
divisions.  The  Owensborough  division  consists  of  the  counties 
of  Daviess,  Henderson,  Union,  Christian,  Todd,  Hopkins,  Webster, 
McLean,  Muhlenberg,  Logan,  Butler,  Grayson,  Ohio,  Hancock, 

66  See  references  in  note  52.  ™  TJ.  S.  R.  S.  §  572;  25  St.  atL.  ch.  817, 

*7  U.  S.  R.  S.  §  572  ;   18  St.  at  L.  15  §  1,  p.  392  ;  20  St.  at  L.  ch.  177,  p.  355,  (U. 

(U.  S.  R.  S.  1st  Supp.  4) ;  21  St.  at  L.  S.  R.  S.  1st  Supp.  452). 

155  (U.  S.,  R.  S.  1st  Supp.  536).  ei  25  St.  at  L.  ch  817,  §  1  p.  392. 

68  U.  S.  R.  S.  §  572,  made  applicable  to        62  u.  S.  R.  S.  §  658. 

Circuit  Courts  of  this  district  by  act  of        G3  Act  of  March  3,  1879,  ch.  177,  §  1 
June  4,  1880,  ch.  120,  supra.  (20  St.  at  L.  355). 

69  U.  S.  R.  S.  §  531.  64  TJ.  s.  R.  S.  §  531. 


42  JURISDICTION.  [CHAP.  I. 

and  Breckenridjje.65  The  rest  of  the  State  constitutes  the  other 
division.65  The  regular  terms  of  the  Circuit  and  District  Courts 
in  this  district  are  held :  at  Covington,  on  the  second  Monday  in 
May  and  the  first  Monday  in  December ;  at  Louisville,  on  the 
third  Monday  in  February  and  the  first  Monday  in  October  ;  at 
Frankfort,  on  the  first  Monday  in  January  and  second  Monday 
in  June  ;  at  Paducah,  on  the  first  Monday  in  April  and  third 
Monday  in  November,  in  each  year  ; 66  and  for  the  Owensborough 
division  at  the  city  of  Owensborough  on  the  fourth  Monday  of 
Januarjr  and  the  first  Monday  of  June,  for  not  more  than  eigh- 
teen judicial  days  in  each  such  term.67 

In  Louisiana  two  judicial  districts,  the  eastern  and  the  western.68 
The  western  district  includes  the  parishes  of  Caddo,  Bossier, 
Webster,  Claiborne,  Union,  Morehouse,  West  Carroll,  East  Car- 
roll, Madison,  Richland,  Ouachita,  Lincoln,  Bienville,  Red  River, 
De  Soto,  Sabine,  Winn,  Natchitoches,  Jackson,  Caldwell,  Frank- 
lin, Tensas,  Concordia,  Catahoula,  Grant,  Vernon,  Rapides, 
Avoyelles,  Saint  Landry,  La  Fayette,  Saint  Martin,  Vermillion, 
Cameron,  and  Calcasieu.  The  remaining  parishes  form  the 
eastern  district.68  The  western  district  is  divided  into  three 
divisions.69  All  process  from  the  Circuit  and  District  Courts  of 
the  western  district  of  Louisiana  against  defendants  residing 
in  the  parishes  of  Saint  Landry,  Saint  Martin,  Cameron,  Calca- 
sieu, La  Fayette,  and  Vermillion,  are  returnable  to  Opelousas.70 
All  process  from  said  courts  against  defendants  residing  in  the 
parishes  of  Rapides,  Vernon,  Avoyelles,  Catahoula,  Grant,  and 
Winn,  are  returnable  to  Alexandria.71  All  process  from  said 
courts  against  defendants  residing  in  the  parishes  of  Caddo,  De 
Soto,  Bossier,  Webster,  Claiborne,  Bienville,  Natchitoches,  Red 
River,  and  Sabine,  are  returnable  at  Shreveport.72  All  process 
from  said  courts  against  defendants  residing  in  the  parishes  of 
Ouachita,  Franklin,  Richland,  Morehouse,  East  Carroll,  West 
Carroll,  Madison,  Tensas,  Concordia,  Union,  Caldwell,  Jackson, 
and  Lincoln  are  returnable  at  Monroe.72  The  eastern  district  is 
divided  into  two  divisions.73     All  process  from  the  Circuit  and 

05  25  St.  at  L.  ch.  702,  p.  389.  6*>  25  St.  at  L.  ch.  789,  §  1,  p.  388. 

6«  U.  S.  R.  S.  §§  572,  658 ;  Act  of  July  70  25  St.  at  L.  ch.  789,  §  1,  p.  388. 

1,  1879,  ch.  59,  §  1  (21  St.  at  L.  45 ;  U.  S.  71  25  St.  at  L.  ch.  789,  §  1,  p.  388. 

R.  S.  1st  Supp.  499).  72  25  St.  at  L.  ch.  789,  §  1,  p.  388. 

6'  25  St.  at  L.  ch.  792,  p  388.  V3  25  St.  at  L.  ch.  869,  p.  438. 

68  21    St.   at  L.  507   (U.  S.  R.  S.  1st 
Supp.  611. 


§  2G.]        DISTRICTS   OF  LOUISIANA,   MAINE,   MARYLAND,   ETC.  43 

District  Courts  for  the  eastern  district  of  Louisiana  against  de- 
fendants residing  in  the  parishes  of  Pointe  Coup,  West  Baton 
Rouge,  Iberville,  Ascension,  East  Feliciana,  West  Feliciana,  East 
Baton  Rouge,  Saint  Helena,  and  Livingston  are  returnable  to  such 
courts  at  Baton  Rouge.74  All  process  against  defendants  residing 
in  the  other  parishes  of  the  eastern  district  are  returnable  at 
New  Orleans.75  In  the  western  district,  the  terms  of  the  Circuit 
and  District  Courts  are  held  :  At  Opelousas,  on  the  first  Mon- 
days of  January  and  June  ;  at  Alexandria,  on  the  fourth  Mondays 
of  January  and  June  ;  at  Shreveport,  on  the  third  Mondays  of 
February  and  July  ;  and  at  Monroe,  on  the  first  Mondays  of 
April  and  October  in  each  year.76  Terms  of  the  District  Courts 
for  the  eastern  district  are  held  at  New  Orleans,  on  the  third 
Mondays  in  February,  May,  and  November.77  Terms  of  the  Cir- 
cuit Courts  for  the  same  district  are  held  at  New  Orleans,  on  the 
fourth  Monday  in  April  and  the  first  Monday  in  November.78 
Terms  of  both  courts  are  held  at  Baton  Rouge  on  the  second 
Mondays  of  April  and  November.79 

Maine  constitutes  one  judicial  district.80  The  terms  of  the 
District  Court  are  held  at  Portland,  on  the  first  Tuesdays  of 
February  and  December ; 81  at  Bangor,  on  the  first  Tuesday  of 
June  ; 82  at  Bath,  on  the  first  Tuesday  of  September.83  The  terms 
of  the  Circuit  Court  are  held  at  Portland,  on  the  twenty-third 
days  of  April  and  September.84 

Maryland  forms  one  judicial  district,85  the  District  Courts  of 
which  are  held  at  Baltimore  on  the  first  Tuesdays  in  March, 
June,  September,  and  December.86  The  terms  of  the  Circuit 
Courts  for  the  same  district  are  held  at  Baltimore  on  the  first 
Mondays  in  April  and  November.87 

Massachusetts  forms  one  judicial  district.88  The  terms  of  the 
District  Courts  are  held  at  Boston  on  the  third  Tuesday  in 
March,  on  the  fourth  Tuesday  in  June,  on  the  second  Tuesday 

74  25  St.  at  L.  ch.  869,  p.  438.  so  TJ.  S.  R.  S.  §  531. 

76  25  St.  at  L.  ch.  869,  p.  438.  »i  tj.  S.  R.  S.  §  572. 

76  Act  of  March  3,  1881,  ch.  144,  §  5  82  Act  of  Jan. 18,  1884,  ch.  1  (23  St.  at 
(21  St.  at  L.  507 ;  U.  S.  R.  S.  1st  Supp.  L.  1). 

611).  83  tj.  S.  R.  S.  §  572. 

77  U.  S.  R.  S.  §  572  ;  Act  of  March  3,        84  TJ.  S.  R.  S.  §  658. 
1881,  ch.  141,  §  6,  supra.  86  jj.  S.  R.  S.  §  531. 

™  U.  S.  R.  S.  §  658 ;  Act  of  March  3,        so  U.  S.  R.  S.  §  572. 

1881,  supra.  87  TJ.  S.  R.  S.  §  658. 

79  25  St.  at  L.  ch.  869,  p.  438.  88  tj.  S.  R.  S.  §  531. 


44  JURISDICTION.  [CHAP.  L 

in  September,  and  on  the  first  Tuesday  in  December.89  The 
terms  of  the  United  States  Circuit  Courts  for  this  district  are 
held  at  Boston,  on  the  fifteenth  days  of  May  and  October.90 

In  Michigan,  two  districts,  the  eastern  and  western  ;  and  the 
latter  has  a  northern  and  a  southern  division.  The  northern  div- 
ision of  the  western  district  includes  all  the  territory  and  waters 
of  the  upper  peninsula  of  the  State.91  The  southern  division  of 
this  district  comprises  all  that  portion  of  the  southern  or  lower 
peninsula  lying  west  of  a  line  described  as  follows  by  the  Re- 
vised Statutes : — 

"  Commencing  at  the  southwest  corner  of  Branch  county,  in 
said  State,  and  running  thence  north  on  the  west  line  of  Branch 
and  Calhoun  counties,  to  the  south  line  of  Barry  county ;  thence 
east  on  the  north  line  of  Calhoun  and  Jackson  counties,  to  the 
southeast  corner  of  Eaton  county  ;  thence  north  on  the  east 
boundary  of  Eaton  county  to  the  south  line  of  Clinton  county ; 
thence  west  on  the  south  line  of  said  county  to  the  southwest 
corner  thereof ;  thence  north  on  the  west  boundary  of  Clinton 
and  Gratiot  counties,  to  the  south  boundary  of  Isabella  county ; 
thence  west,  on  its  south  boundary,  to  the  southwest  corner  of 
said  last  named  county  ;  thence  north  on  the  west  line  of  Isa- 
bella and  Clare  counties,  to  the  south  boundary  of  Missaukee 
county ;  thence  east,  on  its  south  boundary,  to  the  southeast 
corner  of  Missaukee  county ;  thence  north,  on  the  east  line  of 
Missaukee,  Kalcaska,  and  Antrim  counties,  to  the  south  boun- 
dary of  Emmett  county ;  thence  east  to  the  southeast  corner  of 
Emmett  county  ;  thence  north  on  the  east  boundary  of  Emmett 
county,  to  the  Straits  of  Mackinac  ;  thence  north  to  midway 
across  said  straits ;  thence  westerly  in  a  direct  line  to  a  point 
on  the  shore  of  Lake  Michigan  where  the  north  boundary  of 
Delta  county  reaches  Lake  Michigan."  92  The  eastern  division 
includes  the  remaining  portion  of  the  territory  and  waters  of  the 
southern  peninsula.92  Terms  of  both  Circuit  and  District  Courts 
in  the  southern  division  of  the  western  district  are  held  at  Grand 
Rapids  on  the  first  Tuesdays  of  March  and  October  ;  and  in  the 
northern  division,  at  Marquette,  on  the  first  Tuesdays  of  May  and 
September.93    In  the  eastern  district,  terms  of  both  courts  are  held 

83  U.  S.  R.  S.  §  572.  92  U.  S.  R.  S.  §  538 ;  and  see  Act  of 

90  TJ.  S.  R.  S.  §  658.  June  19,  1878,  supra. 

9i  Act  of  June  19,  1878,  ch.  326  (20  St.  93  Act  of  June  19,  1878,  ch.  326,  supra, 

at  L.  175;  U.  S.  R.  S.  1st  Supp.  375).  §  2. 


§  26.]  DISTRICTS   OF   MINNESOTA   AND   MISSISSIPPI.  45 

at  Bay  City  at  such  times  as  the  courts  shall  appoint  ; 94  and  at 
Detroit,  on  the  first  Tuesdays  of  March,  June,  and  November.95 

Minnesota  forms  one  judicial  district.96  The  terms  of  the  Dis- 
trict Court  are  held  at  Winona,  on  the  first  Monday  in  June,  and 
at  Saint  Paul,  on  the  first  Monday  in  October.97  The  terms  of  the 
Circuit  Courts  are  held  at  Saint  Paul  on  the  third  Monday  in 
June,  and  on  the  second  Monday  in  December.98 

In  Mississippi,  two  districts,  the  northern,  and  southern.  The 
northern  district  is  subdivided  into  eastern  and  western  divi- 
sions. The  eastern  division  of  the  northern  district  includes 
the  counties  of  Tishami'ngo,  Alcorn,  Prentiss,  Itawamba,  Lee, 
Pontotoc,  Monroe,  Chickasaw,  Clay,  Oktibbeha,  Lowndes,  Nox- 
ubee, Winston,  Choctaw,  Attala,  Neshoha,  and  Kemper,  as  they 
existed  June  15,  1882.  The  western  division  of  the  northern 
district  comprises  the  counties  of  Carroll,  Bolivar,  Coahoma, 
Tunica,  De  Soto,  Tate,  Marshall,  Panola,  Benton,  Tippah,  Sun- 
flower, Montgomery,  Grenada,  Tallahatchee,  La  Fayette,  Union, 
Webster,  Calhoun,  Quitman,  and  Yalabusha,  as  they  existed  in 
June,  1882.99 

Terms  of  both  Circuit  and  District  Courts,  in  the  eastern  divi- 
sion of  the  northern  district,  are  held  at  Aberdeen,  on  the  first 
Mondays  of  April  and  October,  to  continue  twenty-four  judicial 
days  if  the  business  so  long  require.  The  terms  of  both  courts 
for  the  western  division  are  held  at  Oxford,  on  the  first  Mondays 
of  June  and  December,  to  continue  as  long  as  the  business  may 
require.100 

In  the  northern  district  the  judge  is  authorized  to  appoint  and 
hold  additional  special  terms.101 

The  southern  district  of  Mississippi  is  divided  into  three  divi- 
sions. The  western  division  consists  of  the  counties  of  Wash- 
ington, Sharkey,  Inaquena,  and  Motte.102  The  southern  division 
consists  of  the  counties  of  Hancock,  Harrison,  Jackson,  Marion, 
Perry,   and  Green.103     The  remainder  of  the  southern   district 

94  Act  of  Feb.  28,  1887,  ch.  269  (24  St.         »W  Act  of  June  15, 1882,  ch.  218  (22  St. 
at  L.  423).  at  L.  101)  ;  Act  of  July  8,  1880  (24  St.  at 

95  U.  S.  R.  S.  §§  572,  658.  L.  127). 

»8  U.  S.  R.  S.  §  531.  ioi  Act  of  June  15, 1882,  ch.  218  (22  St. 

97  U  S.  R.  S.  §  572.  at  L.  103). 

98  U.  S.  R.  S.  §  658.  W2  24  St.  at  L.  ch.  279,  p.  430. 

99  Act  of  June  15,  1882,  ch.  218  (22  St.  i<>8  25  St.  at  L.  ch.  68,  p.  78. 
at  L.  101)  ;  Act  of  July  8,  1886,  ch.  745 

(24  St.  at  L.  127). 


46  JURISDICTION.  [CHAP.  I. 

constitutes  the  other  division.104  The  terms  of  the  Circuit  and 
District  Courts  for  the  western  division  are  held  at  Vicksburg 
on  the  first  Mondays  of  January  and  July  in  each  year  ;  for  the 
southern  division,  at  Mississippi  City,  on  the  third  Mondays  of 
February  and  August ;  for  the  other  division  of  the  southern 
district  the  terms  of  the  Circuit  Court  are  held  at  Jackson,  on 
the  first  Mondays  of  May  and  November.105  The  terms  of  the 
District  Court  for  the  same  are  held  at  Jackson,  on  the  fourth 
Mondays  of  January  and  June  in  each  year.105 

In  Missouri,  two  districts,  the  eastern  and  western.  The  east- 
ern districts  of  Missouri  embraces  the  following  counties :  Saint 
Louis,  Franklin,  Gasconade,  Jefferson,  Crawford,  Washington, 
Saint  Francois,  Saint  Genevieve,  Dent,  Iron,  Madison,  Perry, 
Bollinger,  Cape  Girardeau,  Shannon,  Reynolds,  Wayne,  Scott, 
Carter,  Oregon,  Ripley,  Butler,  Stoddard,  New  Madrid,  Missis- 
sippi, Dunklin,  Pemiscot,  Montgomery,  Lincoln,  Warren,  Saint 
Charles,  Macon,  Adair,  Audrain,  Clarke,  Knox,  Lewis,  Marion, 
Monroe,  Pike,  Ralls,  Scuyler,  Scutland,  Shelly,  and  Randolph. 
The  remaining  counties  of  the  State  form  the  western  district.106 

There  are  two  divisions  in  the  eastern  district.  The  city  of 
Saint  Louis,  and  the  counties  of  Saint  Louis,  Franklin,  Gascon- 
ade, Jefferson,  Crawford,  Washington,  Saint  Francois,  Saint 
Genevieve,  Dent,  Iron,  Madison,  Perry,  Bollinger,  Cape  Girard- 
eau, Shannon,  Reynolds,  Wayne,  Scott,  Carter,  Oregon,  Ripley, 
Butler,  Stoddard,  New  Madrid,  Mississippi,  Dunklin,  Pemiscot, 
Montgomery,  Lincoln,  Warren,  and  Saint  Charles  form  the  east- 
ern division.  The  remaining  counties  of  the  eastern  district 
constitute  the  northern  division.107 

The  western  district  of  Missouri  is  divided  into  four  divisions. 
The  counties  of  Clay,  Ray,  Carroll,  Chariton,  Sullivan,  Jackson, 
La  Fayette,  Saline,  Cass,  Johnson,  Bates,  Henry,  Vernon,  Put- 
nam, Caldwell,  Livingston,  Grundy,  Mercer,  Linn,  Barton,  Jasper, 
and  Saint  Clair  form  the  western  division  of  the  western  district. 
The  counties  of  Atchison,  Nodaway,  Holt,  Andrew,  Buchanan, 
Platte,  Clinton,  Harrison,  Daviess,  De  Kalb,  Gentry,  and  Worth 
form  the  Saint  Joseph  division.  The  counties  of  Cedar,  Polk, 
Dallas,  Laclede,  Pulaski,  Dade,  Greene,  Webster,  Wright,  Texas, 

104  24  St.  at  L.  430.  106  U.  S.  R.  S.  §  540 ;  Act  of  Feb.  28, 

i°6  24  St.  at  L.  ch.279,  p.  430;  U.  S.  1887,  ch.  271  (24  St.  at  L.  424) 

R.  S.  §§  572,  658  ;  25  St.  at  L.  ch.  58,  p.  107  Act  of  Feb.  28,  1887,  ch.  271  (24  St. 

78.  at  L.  424). 


§  26.]        DISTRICTS   OF   MISSOURI,  MONTANA,  AND    NEBRASKA.  47 

Lawrence,  Christian,  Douglas,  Howell,  Newton,  Barry,  McDon- 
ald, Stone,  Taney,  and  Ozark  form  the  southern  division  of  the 
western  district.  The  remaining  counties  of  the  western  dis- 
trict form  the  central  division.108  In  each  of  the  divisions  of  the 
eastern  and  western  districts,  there  are  established  a  District 
and  a  Circuit  Court  of  the  United  States,  except  in  the  southern 
division  of  the  western  district,  in  which  there  is  held  only  a 
District  Court.109  There  are  held  two  terms  of  the  District  and 
Circuit  Courts  in  each  year  in  each  of  the  divisions  except  in  the 
southern  division  of  the  western  district,  in  which  there  are 
held  two  terms  of  the  District  Court  only.109  The  times  and 
places  of  holding  the  District  Court  in  the  eastern  district  are, 
for  the  eastern  division,  at  Saint  Louis  on  the  first  Monday  in 
May  and  November  ;  and  for  the  Circuit  Court,  at  the  same  place 
on  the  third  Mondays  in  March  and  September.110  For  the  north- 
ern division  for  both  courts,  at  Hannibal  on  the  fourth  Monday 
in  May  and  the  first  Monday  of  November.111  Courts  for  the 
western  district  are  held  as  follows:  The  District  Court  for 
the  central  division,  at  Jefferson  on  the  first  Mondays  in  March 
and  September,  and  the  Circuit  Court  for  the  same,  at  Jefferson 
on  the  third  Mondays  in  April  and  November.112  Both  courts  for 
the  Saint  Joseph  division,  at  Saint  Joseph,  on  the  first  Mondays 
in  April  and  October;113  both  courts  for  western  division,  at 
Kansas  City,  on  the  third  Mondays  in  May  and  October  ; 1U  the 
district  court  for  the  southern  division,  at  Springfield,  on  the 
first  Mondays  in  February  and  August.115 

Montana,on  its  admission  as  a  State,  constitutes  one  district.116 
Nebraska  forms  one  judicial  district.117  The  time  and  places  of 
holding  courts  therein,  Circuit  and  District,  are  at  Omaha,  on  the 
second  Mondays  of  May  and  November  ;  at  Lincoln,  on  the  second 
Monday  of  January ;  in  Hastings,  on  the  second  Monday  in 
March  ,  and  at  Norfolk,  on  the  second  Monday  of  April.118 

i°8  Act  of  Feb.  28,  1887,  ch.  271  (24  St.  "3  Act  of  Feb.  28,  1887,  ch.  271  (24  St. 

at  L.  424.)  at  L.  424). 

i°»  Act  of  Feb.  28, 1887,  ch.  271  (24  St.  «♦  Act  of  Feb.  28,  1887,  ch.  271  (24  St. 

at  L.  424).  at  L.  424) ;  Act  of  Jan.  21,  1879,  ch.  20 

»°  U.  S.  R.  S.  §§  572,  658  ;  Act  of  Feb.  (20  St.  at  L.  263 ;  U.  S.  R.  S.  1st  Supp. 

28,  1887,  ch.  271  (24  St.  at  L.  424).  392). 

111  Act  of  Feb.  28,  1887,   ch.  271  (24  "<*  Act  of  Feb.  28,  1887,  ch.  271  (24  St. 

St.  at  L.  424)  ;  25  St.  at  L.  ch.  129,  §  1,  at  L.  424). 

p.  88.  11G  25  St.  at  L.  ch.  180,  p.  682. 

l"  Act  of  Feb.  28,  1887,  ch.  271  (24  St.  »7  U.  S.  R.  S.  §  531. 

at  L.  424) ;  U.  S.  R.  S.  §§  572,  658.  118  25  St.  at  L.  ch.  891,  §  1,  p.  443. 


48  JURISDICTION.  [CHAP.  I. 

Nevada  forms  one  judicial  district.119  The  District  Courts 
therein  are  held  at  Carson  City,  on  the  first  Mondays  in  Feb- 
ruary, May,  and  October.120  And  the  Circuit  Courts  for  the  same 
are  held  at  Carson  City,  on  the  third  Monday  of  March  and  the 
first  Monday  of  November  of  each  year.121 

New  Hampshire  forms  one  judicial  district,122  the  District  Courts 
in  which  are  held  at  Portsmouth  on  the  third  Tuesday  in  March 
and  September,  and  at  Concord,  on  the  third  Tuesday  in  June 
and  December.123  The  terms  of  the  Circuit  Court  for  the  same 
are  held  at  Portsmouth  on  the  eighth  day  of  May,  and  at  Con- 
cord on  the  eighth  day  of  October.124 

New  Jersey  constitutes  one  judicial  district,  in  which  the  terms 
of  the  District  Court  are  held  at  Trenton  on  the  third  Tuesdays 
in  January,  April,  June,  and  September.  The  terms  of  the  Cir- 
cuit Court  for  the  same  district  are  held  at  Trenton  on  the  fourth 
Tuesdays  in  March  and  September  in  each  year.125 

In  New  York,  three  districts,  the  northern,  the  eastern,  and 
the  southern.  The  northern  district  includes  the  counties  of 
Rensselaer,  Albany,  Schoharie,  and  Delaware,  with  all  the 
counties  north  and  west  of  them.  The  eastern  district  includes 
the  counties  of  Richmond,  Kings,  Queens,  and  Suffolk,  with  the 
waters  thereof.  The  remainder  of  the  State  with  the  waters 
thereof  constitutes  the  southern  district.126  The  District  Courts 
of  the  southern  and  eastern  districts  of  New  York  have  con- 
current jurisdiction  over  the  waters  within  the  counties  of  New 
York,  Kings,  Queens,  and  Suffolk,  and  over  all  seizures  made 
and  all  matters  done  in  such  waters.127  The  terms  of  the  District 
Court  for  the  northern  district  of  New  York  are  held  at  Albany 
on  the  third  Tuesday  in  January ;  at  Utica,  on  the  third  Tues- 
day in  March ;  at  Rochester,  on  the  second  Tuesday  in  May ;  at 
Buffalo,  on  the  third  Tuesday  in  September;  at  Auburn,  on 
the  third  Tuesday  in  November;  and,  in  the  discretion  of  the 
jud^e  of  the  court,  one  term  annually  at  such  time  and  place 
within   the    counties    of    Onondaga,    Saint   Lawrence,    Clinton, 

"9  TJ.  S.  R.  S.  §  531.  m  U.  S.  R.  S.  §  658 ;  Act  of  Feb.  23, 

i2i  U  S  R  S   §  572.  1881,  ch.  71  (21  St.  at  L.  330). 

i2i  Act  of  Feb.  18,  1876,  ch.  11  (19  St.         **  U.  S.  R.  S  §§531,  572.  658. 
at  L.  4 ;  U.  S.  R.  S.  1st  Supp.  200).  ™  U.  S.  R.  S.  §  541 ;  U.  S.  R.  S.  1st 

122  U.  S.  R.  S.  §  531.  Supp.  138. 

123  U.  S.  R.  S.  §  572 ;  Act  of  Feb.  23,         ™  U.  S.  R.  S.  §  542. 
1881,  ch.  71  (21  St.  at  L.  330). 


§  26.]  DISTRICTS    OF   NEW   YORK   AND   NORTH   CAROLINA.  49 

Jefferson,  Oswego,  and  Franklin,  as  he  may  from  time  to  time 
appoint.128  The  terms  of  the  Circuit  Court  for  the  same  district 
are  held  at  Canandaigua,  on  the  third  Tuesday  in  June  ;  at  Syra- 
cuse, on  the  third  Tuesday  in  November ;  at  Albany,  on  the 
third  Tuesday  in  January.  "  And  when  the  said  term  appointed 
to  be  held  at  Albany  be  adjourned,  it  shall  be  adjourned  to  meet 
in  Utica  on  the  third  Tuesday  in  March ;  but  said  adjourned  term 
shall  be  for  the  transaction  of  civil  business  only."  129 

The  terms  of  the  District  Court  for  the  southern  district  of 
New  York  are  held  in  the  city  of  New  York,  on  the  first  Tuesday 
in  every  month.130  The  terms  of  the  Circuit  Court  for  the  same 
district  are  held  at  the  city  of  New  York  on  the  first  Monday 
in  April,  and  the  third  Monday  in  October ;  and  for  the  trial  of 
criminal  causes  and  suits  in  equity,  on  the  last  Monday  in  Feb- 
ruary ;  and,  exclusively,  for  the  trial  and  disposal  of  criminal 
cases  and  matters  arising  and  pending  in  said  court,  on  the  sec- 
ond Wednesdays  in  January,  March,  and  May,  on  the  third  Wed- 
nesday in  June,  and  on  the  second  Wednesdays  in  October  and 
December :  "  Provided,  That  the  holding  of  any  of  the  last-men- 
tioned terms  for  criminal  business  shall  not  dispense  with  nor 
affect  the  holding  of  any  other  term  of  court  at  the  same  time, 
and  that  the  pending  of  any  other  term  of  court  shall  not  pre- 
vent the  holding  of  any  of  said  terms  for  criminal  business."  131 
District  and  Circuit  Courts  for  the  eastern  district  of  New  York 
are  held  at  Brooklyn  on  the  first  Wednesday  in  every  month.132 

In  North  Carolina,  two  judicial  districts,  the  eastern  and  the 
western.  The  western  district  includes  the  counties  of  Mecklen- 
burg, Cabarras,  Stanly,  Montgomery,  Richmond,  Davie,  David- 
son, Randolph,  Guilford,  Rockingham,  Stokes,  Forsyth,  Union, 
Anson,  Caswell,  Person,  Alamance,  Orange,  Chatham,  Moore, 
Clay,  Cherokee,  Swain,  Macon,  Jackson,  Graham,  Haywood, 
Transylvania,  Henderson,  Buncombe,  Madison,  Yancey,  Mitchell, 
Watauga,  Ashe,  Alleghany,  Caldwell,  Burke,  McDowell,  Ruther- 
ford, Polk,  Cleveland,  Gaston,  Lincoln,  Catawba,  Alexander, 
Wilkes,  Surry,  Iredell,  Yadkin,  and  Rowan,  and  all  counties 
which  have  been  formed  within  this  territory  since  June  4th, 


128  U.  S.  R.  S.  §  572  ;  Act  of  March  23,  13°  U.  S.  R.  S.  §  572. 

1882,  ch.  48,  p.  32  (22  St.  at  L.  32).  ™  U.  S.  R.  S.  §  658. 

»  U.  S.  R.  S.  §  658  ;  Act  of  March  23,  132  tj.  s.  R.  S.  §§  572,  058. 
1882,  ch.  48,  p.  32  (22  St.  at  L.  33). 


50  JUKISDICTION.  [CHAP.  I. 

1872.  The  eastern  district  includes  the  residue  of  the  State.133 
The  terms  of  District  and  Circuit  Courts  for  the  western  district 
of  North  Carolina,  are  held  at  Greensborough  on  the  first  Mon- 
days in  April  and  October ;  at  Statesville,  on  the  third  Mondays 
in  April  and  October ;  at  Asheville,  on  the  first  Mondaj-s  in  May 
and  November  ;  and  at  Charlotte,  on  the  second  Monda}rs  of  June 
and  December.134  The  terms  of  the  District  Court  for  the  eastern 
district  of  North  Carolina  are  held  at  Elizabeth  City,  on  the  third 
Mondays  in  April  and  October ;  at  New  Berne,  on  the  fourth 
Mondays  in  April  and  October ;  and  at  Wilmington,  on  the  first 
Mondays  after  the  fourth  Mondays  in  April  and  October.135  The 
terms  of  the  Circuit  Court  for  the  same  district  are  held  at 
Raleigh  on  the  first  Monday  in  June  and  last  Monday  in  Novem- 
ber ;  and  at  Wilmington  on  the  first  Mondays  after  the  fourth 
Monday  in  April  and  October.136 

North  Dakota  constitutes,  on  its  admission  as  a  State,  one 
district.137 

In  Ohio,  two  districts,  the  northern  and  the  southern.  The 
southern  district  includes  the  counties  of  Belmont,  Guernsey, 
Muskingum,  Licking,  Franklin,  Madison,  Champaign,  Shelby, 
and  Mercer,  as  they  existed  February  10,  1855,  with  all  the 
counties  south  of  them,  and  also  the  counties  of  Union,  Dela- 
ware, Morrow,  Knox,  Coshocton,  Harrison,  and  Jefferson.  The 
northern  district  includes  the  residue  of  the  State.138 

The  northern  district  of  Ohio  is  divided  into  two  divisions. 
The  counties  of  Williams,  Defiance,  Paulding,  Van  Wert,  Mercer, 
Auglaize,  Allen,  Putnam,  Henry,  Fulton,  Lucas,  Wood,  Han- 
cock, Hardin,  Logan,  Marion,  Wyandot,  Seneca,  Sandusky,  Ot- 
tawa, Erie,  and  Huron,  form  the  western  division.  The  remain- 
ing counties  in  the  said  district  form  the  eastern  division.139 

The  southern  District  of  Ohio  is  divided  into  two  divisions. 
The  eastern  division  consists  of  the  counties  of  Union,  Delaware, 
Morrow,  Knox,  Coshocton,  Harrison,  Jefferson,  Madison,  Fayette, 
Franklin,  Pickaway,  Ross,  Pike,  Gallia,   Jackson,  Meigs,  Vin- 

133  u.  S.  R.  S.  §  543.  13S  U.  S.  R.  S.  §  544  ;  Act  of  Feb.  4, 

13*  U.  S.  R.  S.  §§  572,  658 ;  Act  of  June  1880,  ch.  18  (21  St.  at  L.  63;  U.  S.  R.  S. 

19,  1878,  ch.  322  (20  St.  at  L.  173).  1st  Supp.  508). 

i35  U.  S.  R.  S.  572.  139  Act  of  June  8,  1878,  ch.  169  (20  St. 

130  u.  S.  R.  S.  §  658 ;  Act  of  Feb.  17,  at  L.  101)  ;  Act  of  Feb.  4,  1880,  ch.  18 

1887,  ch.  137  (24  St.  at  L.  406).  (21  St.  at  L.  63). 

137  25  St.  at  L.  ch.  180,  p.  682. 


§  26.]  DISTRICTS   OF   OHIO,   OREGON,   AND   PENNSYLVANIA.  51 

ton,  Athens,  Hocking,  Fairfield,  Licking,  Perry,  Muskingum, 
Morgan,  Washington,  Noble,  Monroe,  Belmont,  and  Guernsey. 
The  western  division  includes  the  remaining  counties  of  said 
district.140 

The  terms  of  the  Circuit  and  District  Courts  for  the  northern 
district  of  Ohio  are  held  in  Cleveland,  in  the  eastern  division, 
on  the  first  Tuesdays  of  February,  April,  and  October  ;  and  in 
Toledo,  in  the  western  division,  on  the  first  Tuesdays  of  June 
and  December  of  each  year.141  The  terms  of  both  courts  for  the 
southern  district  are  held  at  Cincinnati  on  the  first  Tuesdays  in 
February,  April,  and  October;  and  at  Columbus,  on  the  first 
Tuesdays  in  June  and  December.142 

Oregon  constitutes  one  judicial  district,143  in  which  the  terms  of 
the  District  Court  are  held  at  Portland  on  the  first  Mondays  in 
March,  July,  and  November.144  The  Circuit  Court  for  the  same 
district  is  held  at  Portland  on  the  second  Monday  of  April  and 
the  first  Monday  of  October.145 

In  Pennsylvania,  two  districts.140  The  western  district  in- 
cludes the  counties  of  Fayette,  Greene,  Washington,  Alle- 
gheny, Westmoreland,  Somerset,  Bedford,  Huntingdon,  Centre, 
Mifflin,  Clearfield,  McKean,  Potter,  Jefferson,  Cambria,  Indi- 
ana, Armstrong,  Butler,  Beaver,  Mercer,  Crawford,  Venango, 
Erie,  Warren,  Susquehanna,  Bradford,  Tioga,  Union,  Northum- 
berland, Columbia,  Luzerne,  and  Lycoming,  as  they  existed 
April  20,  1818.  The  eastern  district  includes  the  rest  of  the 
State.147  The  terms  of  the  District  Court  for  the  eastern  district 
of  Pennsylvania  are  held  at  Philadelphia,  on  the  third  Mondays 
in  February,  May,  August,  and  November.  The  terms  of  the 
Circuit  Court  for  the  same  district  are  held  at  Philadelphia  on  the 
first  Mondays  in  April  and  October.148  The  terms  of  the  District 
Court  for  the  western  district  are  held  at  Pittsburgh,  on  the  first 
Monday  in  May,  and  on  the  third  Monday  in  October ;  at  Wil- 
liamsport,  on  the  third  Monday  in  June,  and  on  the  first  Monday 
in  October  ;  at  Erie,  on  the  second  Monday  in  January,  and  the 

wo  Act  of  Feb.  4,  1880,  ch.  18  (21  St.  143  U.  S.  R.  S.  §  531. 

at  L.  509)  ;  U.  S.  R.  S.  1st  Supp.  508.  144  U.  S.  R.  S.  §  572. 

"i  U.  S.  R.  S.  §§  572,  658 ;    Act  of  145  U.  S.  R.  S.  §  658;  Act  of  June  16, 

June  8,  1878,  ch.  169  (20  St.  at  L.  101) ;  1874,  ch.  287  (18  St.  at  L.  76)  ;  Act  of 

Act  of  July  27, 1882,  ch.  351  (22  St.  at  L.  Feb.  18,  1876,  ch.  11  (19  St.  at  L.  4). 

176).  146  U.  S.  R.  S.  §  545. 

142  U.  S.  R.  S.  §§  572,  658 ;  Act  of  Feb.  ^  U.  S.  R.  S.  §  545. 

4,  1880,  ch.  18  (21  St.  at  L.  63).  148  U.  S.  R.  S.  §§  572,  658. 


52  JUEISDICTION.  [CHAP.  I. 

third  Monday  in  July  ; 149  and  at  Scranton,  on  the  first  Monday  of 
March  and  September.150  The  terms  of  the  Circuit  Court  for  the 
same  district  are  held  at  Erie,  on  the  second  Monday  of  January 
and  third  Monday  of  July  ;  at  Pittsburgh,  on  the  second  Mondays 
in  May  and  November ;  at  Williamsport,  on  the  third  Mondays  in 
June  and  September ;  and  at  Scranton,  on  the  first  Mondays  of 
March  and  September.151 

Rhode  Island  constitutes  one  judicial  district,  in  which  the 
terms  of  the  District  Court  are  held  at  Providence,  on  the  first 
Tuesdays  in  February  and.  August ;  at  Newport,  on  the  second 
Tuesdays  in  May,  and  on  the  third  Tuesday  in  October.  The 
Circuit  Court  for  the  same  district  is  held  at  Providence,  on  the 
fifteenth  daj's  of  June  and  November.152 

In  South  Carolina,  two  districts,  the  eastern  and  western.  The 
western  district  includes  the  counties  of  Lancaster,  Chester,  York, 
Union,  Spartanburgh,  Greenville,  Pendleton,  Abbeville,  Edgefield, 
Newburry,  Laurens,  and  Fairfield,  as  they  existed  February  21, 
1823.  The  eastern  district  includes  the  residue  of  the  State.153 
The  terms  of  the  Circuit  Court  for  the  eastern  district  are  held 
at  Charleston  on  the  first  Monday  of  April;  and  at  Columbia 
on  the  fourth  Monday  of  November.  The  terms  of  the  District 
Court  for  the  eastern  district  are  held  at  Charleston  on  the  first 
Mondays  in  January,  May,  July,  and  October.154  In  the  western 
district,  the  terms  of  both  courts  are  held  at  Greenville  on  the 
first  Monday  in  August.155 

South  Dakota,  on  its  admission  as  a  State,  will  constitute  one 
district.156 

In  Tennessee,  three  districts,  the  eastern,  western,  and  middle. 
The  eastern  district  includes  the  counties  of  Anderson,  Bledsoe, 
Blount,  Bradley,  Campbell,  Carter,  Claiborne,  Cocke,  Cumber- 
land, Grainger,  Greene,  Grundy,  Hamilton,  Hancock,  Hawkins, 
Jefferson,  Johnson,  Knox,  McMinn,  Marion,  Meigs,  Monroe, 
Morgan,  Polk,  Rhea,  Roane,  Scott,  Sevier,  Sullivan,  Union,  and 
Washington,  as  they  existed  February  19,  1856.157     The  western 

i«  U.  S.  R.  S.  §  572.  154  U.  S.  R.  S.  §§  572,  658. 

iw  Act  of  Aug.  5,  1886,  ch.  931  (24  St.  155  U.   S.  R.   S.  §  572;   25   St.  at  L. 

at  L.  336).  655. 

151  U.  S.  R.  S.  §  658 ;  24  St.  at  L.  336.  156  25  St.  at  L.  ch.  180,  682. 

152  TJ.  S.  R.  S.  §§  531,  572,  658.  157  U.  S.  R.  S.  547 ;  Act  of  June  11, 

153  U.  S.  R.  S.  §  546;  25  St.  at  L.  ch.  1880,  ch.  203  (21  St.  at  L.  751). 
113,  p.  655. 


{j  26.]  DISTRICTS    OF    TENNESSEE   AND   TEXAS.  53 

district  includes  the  counties  of  Benton,  Carroll,  Henry,  Obion, 
Dyer,  Gibson,  Lauderdale,  Haywood,  Tipton,  Shelby,  Fayette, 
Hardeman,  McNairy,  Hardin,  Madison,  Henderson,  and  Weakley, 
as  they  existed  June  18,  1838.  The  middle  district  includes 
the  residue  of  the  State.158  The  western  district  of  Tennessee 
is  divided  into  two  divisions,  called  the  eastern  and  western  di- 
visions. The  eastern  division  includes  the  counties  of  Benton, 
Carroll,  Decatur,  Gibson,  Hardeman,  Henderson,  Henry,  McNairy, 
Madison,  Hardin,  Dyer,  Lake,  Crockett,  Weakley,  and  Obion, 
and  the  terms  of  the  circuit  and  district  courts  are  held  therein 
at  Jackson,  at  least  twice  in  each  year,  at  such  times  as  the  judges 
thereof  respectively  fix.159  The  remaining  counties  embraced  in 
this  district  constitute  the  western  division  thereof,  and  the  terms 
of  District  and  Circuit  Courts  are  held  at  Memphis,  on  the  fourth 
Mondays  in  May  and  November.160 

The  eastern  district  of  Tennessee  is  divided  into  two  divisions, 
known  as  the  northern  and  southern  divisions  of  the  eastern  dis- 
trict. The  southern  division  includes  the  counties  of  Hamilton, 
James,  Polk,  McMinn,  Bradley,  Meigs,  Rhea,  Marion,  Sequatchie, 
Bledsoe,  Grundy,  Fentress,  and  Cumberland.  The  northern  di- 
vision consists  of  the  remaining  counties  in  the  district,161  The 
District  and  Circuit  Courts  for  the  eastern  district  are  held  at 
Knoxville  on  the  second  Mondays  in  January  and  July ;  and 
at  Chattanooga  on  the  first  Mondays  of  April  and  October  in 
each  year.162  The  terms  of  the  District  and  Circuit  Courts  for 
the  middle  district  of  Tennessee  are  held  at  Nashville,  on  the 
third  Mondays  in  April  and  October.163 

In  Texas,  three  districts,  the  northern,  eastern,  and  western.164 
The  northern  district  is  composed  of  the  counties  of  Brazos, 
Robertson,  Leon,  Limestone,  Freestone,  Navaroo,  Ellis,  Kaufman, 
Dallas,  Rockwall,  Hunt,  Collin,  Grayson,  Cooke,  Denton,  Tarrant, 
Johnson,  Hill,  McLennan,  Falls,  Bell,  Coryell,  Hamilton,  Bosque, 

iss  u.  S.  R.  S.  §  547  ;  Act  of  March  3,  w  U.  S.  R.  S.  §§  572,  G58  ;  Act  of  June 

1875,  ch.  148  (18  St.  at  L.  480).  11,  1880,  ch.  203,  §  2  (21  St.  at  L.  751). 

159  Act  of  June  20,  1878,  ch.  350,  §  17  1G3  U.  S.  R.  S.  §§  572,  G58. 

(20  St.  at  L.  200)  ;  Act  of  Jan.  15,  1883,  i"  U.  S.  R.  S.  §  548 ;  20  St.  at  L.  ch.  97, 

ch.  25  (22  St.  at  L.  402)  ;  Act  of  Dec.  27,  p.  318 ;  21  St.  at  L.  ch.  18,  §  1,  p.  10  ;  20 

1884  (23  St.  at  L.  280.)  St.  at  L.  ch.  97,  p.  318  ;   21  St.  at  L.  ch. 

loo  Act  of  June  20,  1878,  ch.  359,  §  17  213,  p.  198;  25  St.  at  L.  ch.  633,  §§  17; 

(20  St.  at  L.  206) ;  U.  S.  R.  S.  §§  572,058.  18,  p.  786. 

ici  U.  S.  R.  S.  §  547 ;  21  St.  at  L.  175; 
23  St.  at  L.  280,  §  2. 


54  JURISDICTION.  [CHAP.  I. 

Comanche,  Erath,  Somerville,  Hood,  Parker,  Palo,  Pinto,  Jack, 
Wise,  Montague,  Clay,  Archer,  Wichita,  Wilbarger,  Hardeman, 
Knox,  Baylor,  Haskell,  Throckmorton,  Young,  Stephens,  Shackel- 
ford, Jones,  Taylor,  Callahan,  Eastland,  Brown,  Coleman,  Run- 
nels, Greer,  Nolan,  Fisher,  Stonewall,  King,  Cottle,  Childress, 
Collingsworth,  Wheeler,  Hemphill,  Lipscomb,  Ochiltree,  Roberts, 
Gray,  Donley,  Hall,  Motley,  Dickens,  Kent,  Scurry,  Mitchell, 
Howard,  Borden,  Dawson,  Gaines,  Martin,  Andrews,  Garza, 
Crosby,  Floyd,  Briscoe,  Armstrong,  Carson,  Hutchinson,  Hans- 
ford, Sherman,  Moore,  Potter,  Randall,  Swisher,  Hale,  Lubbock, 
Lynn,  Terry,  Hockley,  Lamb,  Castro,  Deaf  Smith,  Oldham,  Hart- 
ley, Dellam,  Palmer,  Bayley,  Cochran,  and  Yoakum.  The  east- 
ern district  is  composed  of  the  counties  of  Matagorda,  Wharton, 
Brazoria,  Fort  Bend,  Colorado,  Austin,  Waller,  Harris,  Galveston, 
Chambers,  Jefferson,  Orange,  Hardin,  Liberty,  Newton,  Jasper, 
Tyler,  Polk,  San  Jacinto,  Montgomery,  Walker,  Grimes,  Madison, 
Trinity,  Angelina,  San  Augustine,  Sabine,  Shelby,  Nacogdoches, 
Cherokee,  Houston,  Anderson,  Henderson,  Smith,  Rusk,  Panola, 
Harrison,  Gregg,  Upshur,  Wood,  Vanzandt,  Rains,  Hopkins,  Camp, 
Titus,  Marion,  Cass,  Bowie,  Franklin,  Morris,  Red  River,  Jackson, 
Lamar,  Fannin,  and  Delta,  and  so  much  of  the  Indian  Territory 
as  is  thereto  annexed  by  the  Act  of  March  1, 1889.  The  western 
district  includes  the  counties  of  Calhoun,  Aransas,  Victoria, 
Goliad,  Refugio,  Bee,  San  Patricio,  Neuces,  Cameron,  Hidalgo, 
Starr,  Zapata,  Duval,  Encinal,  Webb,  La  Salle,  McMullen,  Live 
Oak,  De  Witt,  Lavaca,  Gonzales,  Wilson,  Karnes,  Atascosa,  Frio 
Dimmit,  Zavala,  Maverick,  Kinney,  Uvalde,  Medina,  Bexar,  Guad- 
alupe, Caldwell,  Fayette,  Washington,  Lee,  Burleson,  Milan, 
Williamson,  Bastrop,  Travis,  Hays,  Comal,  Kendall,  Blanco,  Bur- 
nett, Llano,  Gillespie,  Kerr,  Bandera,  Edwards,  Kimball,  Mason, 
Menard,  El  Paso,  Presidio,  Tom  Green,  Crockett,  Pecos,  Concho, 
McCulloch,  San  Saba,  and  Lampasas.165  The  terms  of  District 
and  Circuit  Courts  for  the  northern  district  are  held  at  Dallas,  on 
the  second  Monday  of  January  and  the  third  Monday  of  May ;  at 
Graham,  on  the  second  Monday  of  March  and  the  third  Monday 
of  October  ;  at  Waco,  on  the  second  Monday  of  April,  and  the 
third  Monday  of  November.166  The  terms  of  the  same  courts  for 
the  eastern  district  are  held  at  Galveston  on  the  first  Mondays  of 

155  See  references  in  last  note.  166  Act  of  June  20,  1884,  ch.  102  (23  St- 

at  L.  48). 


§  26.  DISTRICTS   OF   TEXAS,   VERMONT,    AND   VIRGINIA.  55 

March  and  November ;  at  Tyler,  on  the  second  Mondays  of  Jan- 
nary  and  May  ;  at  Jefferson,  on  the  second  Mondays  of  February 
and  September  ;  and  at  Paris,  on  the  third  Monday  of  April  and 
second  Monday  of  October.167  The  terms  of  the  same  courts  for 
the  western  district  are  held  at  Brownsville,  on  the  first  Mondays 
of  January  and  July  ;  at  San  Antonio,  on  the  first  Mondays  of 
May  and  November  ;  at  El  Paso,  on  the  first  Mondays  in  April 
and  October  ;  and  at  Austin  on  the  first  Mondays  in  February 
and  August.168 

Vermont  constitutes  one  judicial  district,169  for  which  the  terms 
of  the  District  and  Circuit  Courts  are  held  at  Burlington,  on  the 
fourth  Tuesday  in  February  ;  at  Windsor,  on  the  third  Tuesday 
in  May ;  and  at  Rutland,  on  the  first  Tuesday  in  October.170 

In  Virginia  two  districts,  the  eastern  and  western.  The 
western  district  includes  the  counties  of  Albemarle,  Alleghany, 
Amherst,  Appomattox,  Augusta,  Bath,  Bedford,  Bland,  Botetourt, 
Buchanan,  Buckingham,  Campbell,  Carroll,  Charlotte,  Clarke, 
Craig,  Cumberland,  Floyd,  Franklin,  Frederick,  Fluvanna,  Giles, 
Grayson,  Greene,  Halifax,  Henry,  Highland,  Lee,  Madison,  Mont- 
gomery, Nelson,  Patrick,  Page,  Pulaski,  Pittsylvania,  Rappahan- 
nock, Roanoke,  Rockbridge,  Rockingham,  Russell,  Scott,  Smyth, 
Shenandoah,  Tazewell,  Washington,  Wise,  Wythe,  and  Warren. 
The  eastern  district  includes  the  residue  of  the  State.171  The 
terms  of  the  District  and  the  Circuit  Court  for  the  eastern  dis- 
trict of  Virginia  are  held  at  Richmond  on  the  first  Mondays  in 
April  and  October ;  at  Alexandria,  on  the  first  Mondays  in 
January  and  July ;  and  at  Norfolk,  on  the  first  Mondays  in  May 
and  November.  The  terms  of  the  same  courts  for  the  western 
district  are  held  at  Danville  on  the  Tuesday  after  the  third  Mon- 
day in  June,  and  on  the  Tuesday  after  the  third  Monday  in 
November ;  at  Lynchburg,  on  the  Tuesdays  after  the  third  Mon- 
days in  March  and  September ;  at  Abingdon,  on  the  Tuesdays 
after  the  fourth  Mondays  in  May  and  October ;  and  at  Harrison- 
burgh,  on  the  Tuesday  after  the  first  Monday  in  May,  and  the 
Tuesday  after  the  second  Monday  in  October.172 

167  Ibid,  and  25  St.  at  L.  ch.  633,  §  18,        w  U.  S.  R.  S.  §  531. 

p.  786.  i"«  TJ.  S.  R.  S.  §§  572,  658 ;  Act  of  June 

168  U.  S.R.  S.  §§  572,  658:  Act  of  Fcb.24,     5,  1874,  ch.  214  (18  St.  at  L.  53). 
1879,  ch.  97  (20  St.  atL.  318) ;  Act  of  June         "l  U.  S.  R.  S.  §  5  19. 

11,  1879,  ch.  15  (21  St.  at  L.  10)  ;  Act  of        "a  U.  S.  R.  S.  §§  572,  658;  Act  of  Feb. 
Feb.  18, 1881,  ch.  62  (21  St.  at  L.  326) ;  Act     14,  1881,  ch.  45  (21  St.  at  L.  324). 
of  June  3,  1884,  ch.  64  (23  St.  at  L.  35). 


56  JURISDICTION.  [chap.  I. 

Washington,  on  its  admission  as  a  State,  will  constitute  one 
district.173 

West  Virginia  constitutes  one  judicial  district.174  The  terms  of 
the  Circuit  and  District  Courts  for  West  Virginia  are  held  at 
Wheeling,  on  the  first  days  of  March  and  September  ;  at  Clarks- 
burg, on  the  first  days  of  April  and  October  ;  at  Charleston,  on 
the  first  days  of  May  and  November.  When  an}'-  of  these  dates 
fall  on  Sunday  the  court  will  be  held  on  the  following  Monday.175 
The  terms  of  the  circuit  court  for  the  same  district  are  also 
held  at  Parkersburg  on  the  tenth  days  of  January  and  June. 
When  either  of  these  dates  falls  on  Sunday  the  term  will  com- 
mence on  the  following  Monday.176  Terms  of  both  courts  are 
also  held  at  Martinsburg  on  the  first  Tuesday  in  August.177 

In  Wisconsin  two  districts,  the  eastern  and  western.  The 
western  district  includes  the  counties  of  Rock,  Jefferson,  Dane, 
Green,  Grant,  Columbia,  Iowa,  La  Fayette,  Sauk,  Richland, 
Crawford,  Vernon,  La  Cross,  Monroe,  Adams,  Juneau,  Buffalo, 
Chippewa,  Dunn,  Clark,  Jackson,  Eau  Claire,  Pepin,  Marathon, 
Wood,  Pierce,  Polk,  Portage,  Saint  Croix,  Trempealeau,  Douglas, 
Barron,  Burnett,  Ashland,  and  Bayfield.  The  eastern  district 
includes  the  residue  of  the  State.178  The  terms  of  the  District 
and  Circuit  Court  for  the  eastern  district  of  Wisconsin  are  held  at 
Oshkosh,  on  the  second  Tuesday  of  July,  and  at  Milwaukee,  on 
first  Mondays  of  January  and  October.179  The  same  courts  for 
the  western  district  of  Wisconsin  are  held  at  Madison,  on  the 
first  Monday  in  June,  and  at  La  Crosse,  on  the  third  Tuesday  in 
September.180 

§  27.  Sources  of  Federal  Equity  Practice.  —  The  Revised  Statutes 
provide : — 

"  Sec.  917.  The  Supreme  Court  shall  have  power  to  prescribe, 
from  time  to  time,  and  in  any  manner  not  inconsistent  with  any 
law  of  the  United  States,  the  forms  of  writs  and  other  process,  the 
modes  of  framing  and  filling  proceedings  and  pleadings,  of  taking 
and  obtaining  evidence,  of  obtaining  discovery,  of  proceeding  to 


173  25  St.  at  L.  ch.  180,  p.  682.  "7  25  St.  at  L.  ch.  261,  §  1,  p.  151. 

174  U.  S.  R.  S.  §  531.  178  U.  S.  R.  S.  §  550. 

175  U.  S.  R.  S.  §  572 ;  Act  of  March  9,  179  U.  S.  R.  S.  §§  572,  658  ;  Act  of  June 
1878,  ch.  27  (20  St.  at  L.  27)  ;  Act  of  16,  1874,  ch.  286  (18  St.  at  L.  75). 

Feb.  6,  1889  (25  St.  at  L.  655).  180  U.  S.  R.  S.  §§  572,  658. 

its  u.  S.  R.  S.  §  658  ;  Act  of  Dec.  21, 
1878,  ch.  9  (20  St.  at  L.  259). 


§  27.]        SOURCES  OF  FEDERAL  EQUITY  PRACTICE.  57 

oh  tain  relief,  of  drawing  up,  entering,  and  enrolling  decrees,  and 
of  proceeding  before  trustees  appointed  by  the  court,  and  gener- 
ally to  regulate  the  whole  practice  to  be  used  in  suits  in  equity 
or  admiralty,  by  the  circuit  and  district  courts. 

"Sec.  918.  The  several  circuit  and  district  courts  may,  from 
time  to  time,  and  in  any  manner  not  inconsistent  with  any  law 
of  the  United  States  or  with  any  rule  prescribed  by  the  Supreme 
Court  under  the  preceding  section,  make  rules  and  orders  directing 
the  returning  of  writs  and  processes,  the  filing  of  pleadings,  the 
taking  of  rules,  the  entering  and  making  up  of  judgments  by  de- 
fault, and  other  matters,  in  vacation,  and  otherwise  regulate  their 
own  practice  as  may  be  necessary  or  convenient  for  the  advance- 
ment of  justice  and  the  prevention  of  delays  in  proceedings." 

Under  these  provisions  the  Supreme  Court  has  from  time  to 
time  promulgated  ninety-four  rules  of  equity  practice ;  and  most 
of  the  inferior  courts  have  also  adopted  rules  of  their  own.  The 
ninetieth  rule  of  the  Supreme  Court,  which  was  promulgated  in 
1842,  provides  that,  "  in  all  cases  where  the  rules  prescribed  by 
this  court  or  by  the  circuit  court  do  not  apply,  the  practice  of 
the  circuit  court  shall  be  regulated  by  the  present  practice  of 
the  High  Court  of  Chancery  in  England,  so  far  as  the  same  may 
reasonably  be  applied  consistently  with  the  local  circumstances 
and  local  conveniences  of  the  district  where  the  court  is  held, 
not  as  positive  rules,  but  as  furnishing  just  analogies  to  regulate 
the  practice."     Of  this  rule  Judge  Sawyer  said:  — 

"  The  jurisdiction  of  this  court  is  derived  from  the  Constitu- 
tion and  laws  of  the  United  States ;  and  these  rules  are  simply 
rules  of  practice,  for  regulating  the  mode  of  proceeding  in  the 
courts.  They  do  not,  and  could  not,  properly,  either  limit  or 
enlarge  the  jurisdiction  of  the  court.  The  rule  quoted  simpty 
regulates  the  practice  in  exercising  the  jurisdiction  of  the  court 
in  those  respects  wherein  the  rules  adopted  do  not  apply ;  but 
the  practice  of  the  High  Court  of  Chancery  is  to  be  applied,  not 
as  controlling,  but  simply  as  furnishing  just  analogies  to  regulate 
the  practice."  1 

By  reference  to  these  sources  and  the  decisions  of  the  courts 
resulting  from  them,  the  practice  at  equity  in  the  courts  of  the 
United  States  must  be  determined.2 

1  Lewis   v.    Shainwald,    7   Saw.   403,  2  See  Ex  parte  Poultney  v.  City  of 

405.  La  Fayette,  12  Pet.  472,  at  page  474. 


58 


JURISDICTION. 


[chap.  I. 


NOTE 

UPON   LIMITATIONS    ON   JURISDICTION   BY   RESIDENCE   IN   CERTAIN   STATES. 

(See  page  31.) 


Alabama.  —  23  St.  at  L.  18-19,  after  di- 
viding the  northern  district  of  Alabama 
into  northern  and  southern  divisions, 
provides  :  — 

"  §  4.  That  all  civil  suits,  not  of  a 
local  character,  which  shall  be  hereafter 
brought  in  the  circuit  or  district  court  of 
United  States  for  the  northern  district 
of  Alabama,  in  either  of  said  divisions, 
against  a  single  defendant,  or  where  all 
the  defendants  reside  in  the  same  di- 
vision of  said  district,  shall  be  brought 
in  the  division  in  which  the  defendant  or 
defendants  reside ;  but  if  there  are  two 
or  more  defendants,  residing  in  different 
divisions,  such  suit  may  be  brought  in 
either  division ;  and  all  mesne  and  final 
process,  subject  to  the  provisions  of  this 
act  issued  in  either  of  said  divisions,  may- 
be served  and  executed  in  either  or  both 
of  the  divisions." 

Georgia.  —21  St.  atL.  62-63  (1st  Supp. 
U.  S.  K.  S.  507-508),  after  altering  the 
boundaries  of  the  southern  district  of 
Georgia,  and  dividing  it  into  eastern  and 
western  divisions  (for  which  see  supra, 
p.  38),  provides  that:  — 

"  §  4.  All  suits  not  of  a  local  nature 
in  the  circuit  and  district  courts  against 
a  single  defendant,  inhabitant  of  said 
State,  must  be  brought  in  the  division  of 
the  district  where  he  resides  ;  but  if  there 
are  two  or  more  defendants  residing  in 
different  divisions  of  the  district,  such 
suits  may  be  brought  in  either  division. 
All  issues  of  fact  in  said  suits  shall  be 
tried  at  a  term  of  the  court  held  in  the 
division  where  the  suit  is  so  brought. 

"  §  5.  Prosecutions  for  crimes  or  of- 
fences hereafter  committed  in  either  of 
the  subdivisions  shall  be  cognizable  with- 
in such  division ;  and  all  prosecutions 
for  crimes  or  offences  heretofore  com- 
mitted within  either  of  said  counties, 
taken  as  aforesaid  from  the  northern 
district,  or  committed  in  the  southern 
district  as  hitherto  constituted,  shall  be 


commenced  and  proceeded  with  as  if  this 
act  had  not  been  passed. 

"  §  6.  Civil  actions  or  proceedings  now 
pending  at  Savannah  in  said  southern 
district,  which  would  under  this  act  be 
brought  in  the  western  division  of  said 
district,  may  be  transferred,  by  the  con- 
sent of  all  the  parties,  to  said  western 
division ;  and  in  case  of  such  transfer, 
all  papers  and  files  therein,  with  copies 
of  all  journal  entries,  shall  be  transferred 
to  the  deputy  clerk's  office  at  Macon, 
and  the  same  shall  be  proceeded  with  in 
all  respects  as  though  it  was  originally 
commenced  in  the  western  division. 

"  §  7.  In  all  cases  of  removal  of  suits 
from  the  courts  of  the  State  of  Georgia 
to  the  courts  of  the  United  States  in  the 
southern  district  of  Georgia,  such  removal 
shall  be  to  the  United  States  courts  in 
the  division  in  which  the  county  is  situ- 
ated from  which  the  removal  is  made  ; 
and  the  time  within  which  the  removal 
shall  be  perfected,  in  so  far  as  it  refers 
to,  or  is  regulated  by,  the  terms  of  the 
United  States  courts,  shall  be  deemed  to 
refer  to  the  terms  of  the  United  States 
courts  in  such  division. 

"  §  8.  All  grand  and  petit  jurors  sum- 
moned for  service  in  each  division  shall 
be  residents  of  such  division.  All  mesne 
and  final  process,  subject  to  the  pro- 
visions hereinbefore  contained,  issued  in 
either  of  said  divisions  may  be  served 
and  executed  in  either  or  both  of  the 
divisions." 

Indiana.— U.  S.  R.  S.  §  743.  "In  the 
district  of  Indiana  all  actions  of  which 
the  circuit  and  district  courts  have  juris- 
diction may  be  instituted  in  said  courts, 
respectively,  held  at  New  Albany  and 
Evansville,  in  the  first  instance,  by  filing 
the  proper  pleadings  or  other  papers  in 
the  offices  of  the  deputy  clerks  perform- 
ing the  duties  of  clerks  of  said  courts 
respectively  ;  and  all  proper  and  lawful 
process  shall  issue  therefrom  in  the  same 


27.] 


LIMITATIONS   UPON   JUEISDICTION    BY   RESIDENCE. 


59 


manner  as  from  other  circuit  and  district 
courts  in  like  cases." 

Iowa.  —  U.  S.  R.  S.  §  744.  "  In  the  dis- 
trict of  Iowa  all  suits  not  of  a  local  nature 
in  the  district  court  against  a  single  de- 
fendant, inhabitant  of  such  State,  must 
be  brought  in  the  division  of  the  district 
where  he  resides  ;  but  if  there  are  two  or 
more  defendants,  residing  in  different  di- 
visions of  the  district,  such  suits  may  be 
brought  in  either  division,  and  duplicate 
writs  may  be  sent  to  the  other  defend- 
ants. The  clerk  issuing  the  duplicate 
writ  shall  indorse  thereon  that  it  is  a 
true  copy  of  a  writ  sued  out  of  the  court 
in  the  proper  division  of  the  district ;  and 
the  original  and  duplicate  writs,  when 
executed  and  returned  into  the  office 
from  which  they  issue,  shall  constitute 
and  be  proceeded  in  as  one  suit.  All 
issues  of  fact  in  such  suits  shall  be  tried 
at  a  term  of  the  court  held  in  the  division 
where  the  suit  is  so  brought." 

21  St.  at  L.  155  (1  Supp.  U.  S.  R.  S. 
530) :  "  §  1.  That  the  circuit  court  of  the 
United  States  in  and  for  the  district  of 
Iowa  shall  hereafter  be  held  at  the  times 
and  places  provided  by  law  for  holding 
the  United  States  district  court  in  and 
for  said  district.  Causes  removed  from 
any  court  of  the  State  of  Iowa  into  said 
circuit  court  within  said  district  shall 
be  removed  to  the  circuit  court  in  the 
division  in  which  such  State  court  is  held, 
unless  the  parties  thereto  shall  otherwise 
agree,  or  the  court,  for  good  cause,  shall 
otherwise  order. 

"  §  2.  That  all  civil  suits  not  of  a  local 
nature  which  shall  be  hereafter  brought 
in  the  circuit  or  district  court  of  the 
United  States  in  said  district  must  be 
brought  in  the  division  of  the  district 
where  the  defendant  or  defendants  re- 
side ;  but  if  there  are  two  or  more  de- 
fendants residing  in  different  divisions 
the  plaintiff  may  sue  in  either  one  of  the 
divisions  in  which  a  defendant  resides. 
All  issues  of  fact  triable  in  either  of  said 
courts  shall  be  tried  in  the  division  where 
the  defendant  or  one  of  the  defendants 
resides,  unless  by  consent  of  both  parties 
the  case  shall  be  removed  to  some  other 
division.  Where  the  defendant  is  a  non- 
resident of  the  district  suit  may  be 
brought  in  any  division  where  property 
or  the  defendant  is  found." 


Kentucky.  —  U.  S.  R.  S.  §  745.  "  In  the 
district  of  Kentucky  the  clerks  of  the  cir- 
cuit and  district  courts,  respectively,  upon 
issuing  original  process  in  a  civil  action, 
shall  make  it  returnable  to  the  court 
nearest  to  the  county  of  the  residence  of 
the  defendant,  or  of  that  defendant  whose 
county  is  nearest  a  court,  if  he  have  in- 
formation sufficient,  and  shall  imme- 
diately, upon  payment  by  the  plaintiff 
of  his  fees  accrued,  send  the  papers  filed 
to  the  clerk  of  the  court  to  which  the 
process  is  made  returnable  ;  and  when- 
ever the  process  is  not  thus  made  return- 
able, any  defendant  may,  upon  motion, 
on  or  before  the  calling  of  the  cause, 
have  it  transferred  to  the  court  to  which 
it  should  have  been  sent  had  the  clerk 
known  the  residence  of  the  defendant 
when  the  action  was  brought." 

Michigan.  —  20  St.  at  L.  175  (1  Supp. 
U.  S.  R.  S.  375) :  "  §  1.  That  the  counties 
of  Chippewa,  Schoolcraft,  Marquette, 
Houghton,  Keweenaw,  Ontonagon,  Isle 
Royale,  Baraga,  and  Mackinaw,  being 
and  including  all  that  portion  of  the 
territory  and  waters  of  said  eastern  dis- 
trict lying  in  the  upper  peninsula  of 
Michigan  be,  and  the  same  are  hereby 
detached  from  the  eastern  judicial  dis- 
trict of  Michigan,  and  attached  to  the 
western  judicial  district  of  said  State. 

"  §  2.  That  for  the  trial  and  determi- 
nation of  all  causes  and  proceedings 
cognizable  and  triable  in  the  circuit  and 
district  courts  of  the  United  States  for 
the  western  district  of  Michigan  as 
bounded  and  described  in  this  act,  the 
said  district  shall  consist  of  two  divisions 
known  respectively  as  the  southern  and 
northern  divisions  of  said  district.  The 
southern  division  shall  comprise  all  that 
portion  of  said  district  lying  and  being 
in  the  lower  peninsula  of  said  State,  and 
the  northern  division  of  said  district  shall 
comprise  all  the  territory  and  waters  of 
the  entire  upper  peninsula  of  said  State ; 
and  there  shall  be  two  regular  terms  of 
the  circuit  and  district  courts  begun  and 
held  in  each  of  the  divisions  of  said 
western  district  annually.  The  regular 
terms  of  the  circuit  and  district  courts 
in  said  southern  division  shall  be  held  at 
the  city  of  Grand  Rapids,  commencing 
on  the  first  Tuesdays  of  .March  and  Octo- 
ber in  each  year.     The  regular  terms  of 


60 


JURISDICTION. 


[CHAP.  I. 


the  circuit  and  district  courts  in  said 
northern  division  shall  be  held  at  the 
city  of  Marquette,  commencing  upon  the 
first  Tuesdays  of  May  and  September  in 
each  year.  And  all  issues  of  fact  shall 
be  tried  at  the  terms  of  said  courts  to  be 
held  in  the  division  where  such  suits  shall 
hereafter  be  commenced ;  but  nothing 
herein  contained  shall  prevent  the  said 
circuit  and  district  courts  from  regulat- 
ing by  general  rule  the  venue  of  transi- 
tory actions,  either  at  law  or  in  equity, 
and  from  changing  the  same  for  cause. 

"  §  3.  That  all  suits  and  proceedings 
hereafter  to  be  brought  in  the  said  cir- 
cuit or  district  courts  not  of  a  local  na- 
ture shall  be  brought  in  a  court  of  the 
division  of  the  district  where  the  defend- 
ant resides.  But  if  there  be  more  than 
one  defendant,  and  they  reside  in  different 
divisions  of  the  district,  the  plaintiff  may 
sue  in  either  divisions  and  send  duplicate 
writ  or  writs  to  the  other  defendants,  on 
which  the  plaintiff  or  his  attorney  shall 
endorse  that  the  writ  thus  sent  is  a  copy 
of  a  writ  sued  out  of  a  court  of  the  proper 
division  of  the  said  district ;  and  the  said 
writs  when  executed  and  returned  into 
the  office  from  which  they  issuer!,  shall 
constitute  one  suit,  and  be  proceeded  in 
accordingly. 

"  §  4.  The  clerk  of  the  circuit  and 
district  courts  for  the  western  division 
of  Michigan  shall  reside  and  keep  his 
office  at  Grand  Rapids,  and  shall  also 
appoint  a  deputy  clerk  for  said  courts 
held  at  Marquette,  who  shall  reside  and 
keep  his  office  at  that  place ;  and  said 
deputy  clerk  shall  keep  in  his  office  full 
records  of  all  actions  and  proceedings  in 
the  said  circuit  and  district  courts  for  the 
northern  division  of  said  district  held  at 
that  place,  and  shall  have  the  same  power 
to  issue  all  processes  from  the  said  courts 
and  perform  any  other  duty  that  is  or 
may  be  given  to  the  clerks  of  other  cir- 
cuit and  district  courts  in  like  cases. 

"§5.  That  the  district  attorney  and 
marshal  of  the  said  western  district  of 
Michigan  shall  respectively  perform  the 
duties  of  district  attorney  and  marshal 
for  the  southern  and  northern  divisions 
of  said  district  as  established  by  this  act. 
The  marshal  of  said  district  shall  keep  an 
office  and  a  deputy  marshal  at  Marquette 
in  the  northern  division  of  said  district. 


"  §  6.  Any  person  charged  with  viola- 
ting any  of  the  penal  or  criminal  statutes 
of  the  United  States  of  which  the  said 
circuit  or  district  courts  have  jurisdiction, 
shall  be  proceeded  against  by  indictment 
or  otherwise,  within  the  division  of  said 
district  where  the  alleged  offence  or  of- 
fences shall  be  committed,  and  shall  have 
his  or  her  trial  at  a  term  of  the  said  court 
held  in  said  division,  unless  for  cause 
shown,  the  judge  shall  otherwise  direct ; 
and  one  grand  and  one  petit  jury  only 
shall  be  summoned,  and  serve  in  both  said 
courts  at  each  term  thereof;  and  jurors 
shall  be  selected  and  drawn  from  the  di- 
vision of  the  said  district  in  which  they 
reside  and  in  which  the  terms  of  the  said 
circuit  and  district  courts  to  which  they 
are  summoned  are  held. 

"§  7.  This  act  shall  not  affect  or  in 
any  wise  interfere  with  causes  of  action 
now  pending  in  the  circuit  and  district 
courts  for  the  eastern  district  of  Michi- 
gan, but  the  same  may  be  proceeded  with 
in  the  same  manner  as  though  this  act 
had  not  been  passed  :  Provided,  however, 
That  upon  cause  shown,  the  circuit  and 
district  courts  for  the  eastern  district  may 
transfer  civil  causes  arising  in  that  por- 
tion of  said  district  detached  therefrom 
by  this  act  to  the  circuit  and  district 
courts  for  the  northern  division  of  the 
western  district  of  Michigan,  provided 
for  in  this  act.  The  circuit  and  district 
courts  for  the  eastern  district  of  Michi- 
gan shall  continue  to  have  the  same  ju- 
risdiction in  reference  to  all  crimes  and 
offences  committed  prior  to  the  passage 
of  this  act  in  any  portion  of  the  State  of 
Michigan  by  this  act  detached  from  said 
eastern  district  and  attached  to  said  west- 
ern district. 

"§  8.  All  provisions  of  law  in  conflict 
with  this  act  are  hereby  repealed. 

"§9.  There  shall  be  one  or  more 
terms  of  the  district  court  for  the  eastern 
district  of  Michigan,  held  annually  at 
the  United  States  court  room  in  the  city 
of  Port  Huron  in  said  district,  in  the  dis- 
cretion of  the  judge  of  said  district  court, 
and  at  such  times  as  he  shall  appoint 
therefor." 

Missouri.  —  20  St.  at  L.  263  (1  Supp. 
U.  S.  R.  S.  393)  :  "  §  1.  The  western  dis- 
trict of  Missouri  is  hereby  divided  into 
two  divisions,  which  shall  be  known  as 


27.] 


LIMITATIONS    UPON   JUKISDICTION   BY   RESIDENCE. 


01 


the  eastern  and  western  divisions  of  the 
western  district  of  Missouri.  The  western 
division  shall  include  the  counties  of  An- 
drew, Atchison,  Barton,  Bates,  Buchanan, 
Caldwell,  Carroll,  Cass,  Chariton,  Clay, 
Clinton,  Daviess,  De  Kalb,  Gentry,  Grun- 
dy, Harrison,  Holt,  Jackson,  Jasper,  La 
Fayette,  Linn,  Livingston,  Mercer,  Noda- 
way, Platte,  Putnam,  Ray,  Saline,  Sulli- 
van, Vernon,  and  Worth ;  and  a  term  of 
the  district  court  and  circuit  of  the 
United  States  for  said  district  shall  be 
held  therein  at  the  City  of  Kansas  on 
the  third  Monday  in  May  and  the  third 
Monday  in  October  of  each  year.  The 
remaining  counties  embraced  in  said  dis- 
trict shall  constitute  the  eastern  division 
thereof,  and  the  terms  of  the  district  and 
circuit  courts  of  the  United  States  for 
said  district  shall  be  held  therein  at  the 
times  and  place  now  prescribed  by  law. 

"  §  2.  All  offences  hereafter  com- 
mitted in  either  of  said  divisions  shall  be 
cognizable  and  indictable  within  the  di- 
vision where  committed  ;  and  all  grand 
and  petit  jurors  summoned  for  service  in 
each  division  shall  be  inhabitants  thereof. 
And  all  offences  heretofore  committed 
within  said  district  shall  be  prosecuted 
and  tried  as  if  this  act  had  not  passed. 

"  §  3.  All  civil  suits  not  of  a  local  char- 
acter which  shall  be  hereafter  brought  in 
the  district  or  circuit  courts  of  the  United 
States  for  the  western  district  of  Missouri 
in  either  of  said  divisions,  against  a  single 
defendant,  or  where  all  the  defendants 
reside  in  the  same  division  of  said  dis- 
trict, shall  be  brought  in  the  division  in 
which  the  defendant  or  defendants  re- 
side ;  but  if  there  are  two  or  more  de- 
fendants residing  in  different  divisions, 
such  suit  may  be  brought  in  either  di- 
vision, and  all  mesne  and  final  process 
subject  to  the  provisions  of  this  act,  issued 
in  either  of  said  divisions,  may  be  served 
and  executed  in  either  or  both  of  the 
divisions. 

"  §  4.  The  clerks  of  the  circuit  and 
district  courts  for  said  district  shall  each 
appoint  a  deputy  clerk  at  the  place  where 
their  respective  courts  are  required  to  be 
held  in  the  division  of  the  district  in 
which  such  clerk  shall  not  himself  reside, 
each  of  whom  shall,  in  the  absence  of  the 
clerk,  exercise  all  the  powers  and  perform 
all    the  duties  of   clerk    within    the   di- 


vision for  which  he  shall  be  appointed  : 
Provided,  That  the  appointment  of  such 
deputies  shall  be  approved  by  the  court 
for  which  they  shall  be  respectively  ap- 
pointed, and  may  be  annulled  by  such 
court  at  its  pleasure.  And  the  clerk  shall 
be  responsible  for  the  official  acts  and 
neglects  of  all  such  deputies. 

"§5.  All  civil  suits  and  proceedings 
now  pending  in  the  circuit  or  district 
court  of  said  western  district  of  Missouri, 
and  which  would,  if  instituted  after  the 
passage  of  this  act,  be  required  to  be 
brought  in  the  western  division  of  said 
district,  may  be  transferred,  by  consent 
of  all  the  parties,  to  said  western  division 
of  said  district,  and  there  disposed  of  in 
the  same  manner  and  with  like  effect  as 
if  the  same  had  been  there  instituted ; 
And  all  process,  writs,  and  recognizances 
relating  to  such  suits  and  proceedings  so 
transferred  shall  be  considered  as  belong- 
ing to  the  term  of  the  court  in  the  western 
division  of  said  district,  in  the  same  man- 
ner and  with  like  effect  as  if  they  had 
been  issued  or  taken  in  reference  thereto 
originally." 

Ohio.  —  20  St.  at  L.  101  (1  Supp.  U.  S. 
R.  S.  333) :  "  §  1.  That  a  term  of  the  circuit 
court  and  district  court  for  the  northern 
district  of  Ohio  shall  be  held  at  Toledo, 
in  said  State,  on  the  first  Tuesday  of  the 
months  of  June  and  December  in  each 
year;  and  one  grand  jury  and  one  petit 
jury  only  shall  be  summoned,  and  serve 
in  both  of  said  courts  at  each  term  there- 
of. And  the  existing  provisions  of  law 
fixing  the  times  of  holding  the  district 
court  at  Toledo  are  hereby  repealed. 

"§  2.  Said  northern  district  shall  be, 
and  hereby  is,  divided  into  two  divisions, 
to  be  known  as  the  eastern  and  the  west- 
ern division  of  the  northern  district  of 
Ohio.  The  western  division  shall  con- 
sist of  twenty-four  counties,  to  wit ;  Wil- 
liams, Defiance,  Paulding,  Van  Wert, 
Mercer,  Auglaize,  Allen,  Putnam,  Henry, 
Fulton,  Lucas,  Wood,  Hancock,  Hardin, 
Logan,  Union,  Delaware,  Marion,  Wy- 
andot, Seneca,  Sandusky,  Ottawa,  Erie, 
and  Huron  ;  and  the  eastern  division  shall 
consist  of  the  remaining  counties  in  said 
district.  But  no  additional  clerk  or  mar- 
shal shall  be  appointed  in  said  district. 

"  §  3.  All  suits  not  of  a  local  nature 
in  the  circuit  and  district  courts,  against 


62 


JURISDICTION. 


[CHAP.  I. 


a  single"  defendant,  inhabitant  of  such 
State,  must  be  brought  in  the  division  of 
the  district  where  he  resides  ;  but  if  there 
are  two  or  more  defendants,  residing  in 
different  divisions  of  the  district,  such 
suits  may  be  brought  in  either  division. 
All  issues  of  fact  in  such  suits  shall  be 
tried  at  a  term  of  the  court  held  in  the 
division  where  the  suit  is  so  brought." 

"  §  6.  .  .  .  All  mesne  and  final  process, 
subject  to  the  provisions  hereinbefore 
contained,  issued  in  either  of  said  di- 
visions, may  be  served  and  executed  in 
either  or  both  of  the  divisions.  •  .  ." 

21  St.  at  L.  63  (1  Supp.  U.  S.  R.  S. 
508,  509) :  "  §  1.  That  the  counties  of 
Union,  Delaware,  Morrow,  Knox,  Cos- 
hocton, Harrison,  and  Jefferson,  hereto- 
fore composing  a  part  of  the  northern 
district  of  Ohio,  be  transferred  to,  and 
henceforth  form  a  part  of,  the  southern 
district  of  Ohio. 

"  §  2.  A  term  of  the  circuit  court  and 
of  the  district  court  for  the  southern  dis- 
trict of  Ohio  shall  be  held  at  Columbus 
in  said  State  on  the  first  Tuesday  of  the 
months  of  June  and  December  in  each 
year. 

"  §  3.  Said  southern  district  shall  be, 
and  hereby  is,  divided  into  two  divisions, 
to  be  known  as  the  eastern  and  the  west- 
ern division  of  the  southern  district  of 
Ohio.  The  eastern  division  shall  consist 
of  twenty-nine  counties,  to  wit :  Union, 
Delaware,  Morrow,  Knox,  Coshocton, 
Harrison,  Jefferson,  Madison,  Fayette, 
Franklin,  Pickaway,  Ross,  Pike,  Gallia, 
Jackson,  Meigs,  Vinton,  Athens,  Hock- 
ing, Fairfield,  Licking,  Perry,  Muskin- 
gum, Morgan, Washington,  Noble.Monroe, 
Belmont,  and  Guernsey ;  and  the  western 
division  shall  consist  of  the  remaining 
counties  in  said  district.  But  no  ad- 
ditional clerk  or  marshal  shall  be  ap- 
pointed in  said  district. 

"  §  4.  All  suits  not  of  a  local  nature 
in  the  circuit  and  district  courts  against 
a  single  defendant,  inhabitant  of  said 
State,  must  be  brought  in  the  division 
of  the  district  where  he  resides  ;  but  if 
there  are  two  or  more  defendants  residing 
in  different  divisions  of  the  district,  such 
suits  may  be  brought  in  either  division. 
All  issues  of  fact  in  said  suits  shall  be 
tried  at  a  term  of  the  court  held  in  the 
division  where  the  suit  is  so  brought." 


"  §  7.  .  .  .  All  mesne  and  final  process 
subject  to  the  provisions  hereinbefore 
contained  issued  in  either  of  said  di- 
visions may  be  served  and  executed  in 
either  or  both  of  the  divisions. 

"  §  8.  In  all  cases  of  removal  of  suits 
from  the  courts  of  the  State  of  Ohio  to 
the  courts  of  the  United  States  in  the 
southern  district  of  Ohio,  such  removal 
shall  be  to  the  United  States  courts  in 
the  division  in  which  the  county  is  situ- 
ated from  which  the  removal  is  made  ; 
and  the  time  within  which  the  removal 
shall  be  perfected,  in  so  far  as  it  refers 
to  or  is  regulated  by  the  terms  of  the 
United  States  courts,  shall  be  deemed  to 
refer  to  the  terms  of  the  United  States 
courts  in  such  division." 

Tennessee.—  21  St.  at  L.  751  (1  Supp. 
U.  S.  R.  S.  548) :  "§  1.  That  the  county 
of  Grundy  heretofore  composing  a  part  of 
the  middle  district  of  Tennessee  be  trans- 
ferred to,  and  henceforth  form  a  part  of, 
the  eastern  district  of  Tennessee. 

"  §  2.  A  term  of  the  circuit  court  and 
of  the  district  court  for  the  eastern  dis- 
trict of  Tennessee  shall  be  held  at  Chat- 
tanooga in  said  State  in  each  year  on  the 
first  Mondays  of  April  and  October,  after 
the  passage  of  this  act. 

"§  3.  Said  eastern  district  shall  be 
and  hereby  is  divided  into  two  divisions, 
to  be  known  as  the  northern  and  southern 
divisions  of  the  eastern  district  of  Ten- 
nessee, the  southern  division  shall  con- 
sist of  the  following  counties,  to  wit, 
Hamilton,  James,  Polk,  McMinn,  Brad- 
ley, Meigs,  Rhea,  Marion,  Sequatchie, 
Bledsoe,  Grundy,  and  Cumberland,  and 
the  northern  division  shall  consist  of  the 
remaining  counties  in  said  district.  But 
no  additional  clerk  or  marshal  shall  be 
appointed  in  said  district. 

"  §  4.  That  the  clerks  of  the  district 
and  circuit  courts  for  the  eastern  district 
of  Tennessee,  and  the  marshal  and  dis- 
trict attorney  for  said  district,  shall  per- 
form the  duties  appertaining  to  their 
offices  respectively  for  said  courts.  And 
the  said  clerks  and  marshals  shall  each 
appoint  a  deputy  to  reside  and  keep  their 
offices  in  the  City  of  Chattanooga,  and 
who  shall,  in  the  absence  of  their  prin- 
cipals, do  and  perform  all  the  duties 
appertaining  to  their  offices  respectively. 

"  §  5.  All  suits  not  of  a  local  nature 


27.] 


LIMITATIONS   UPON    JURISDICTION    BY    RESIDENCE. 


G3 


in  the  circuit  and  district  courts  against 
a  single  defendant,  inhabitant  of  said 
State,  must  be  brought  in  the  division  of 
the  district  where  he  resides  ;  but  if  there 
are  two  or  more  defendants  residing  in 
different  divisions  of  the  district,  such 
suits  may  be  brought  in  either  division. 
All  issues  of  fact  in  said  suits  shall  be 
tried  at  a  term  of  the  court  held  in  the 
division  where  the  suit  is  so  brought."' 

"  §  7.  .  .  .  All  mesne  and  final  process 
subject  to  the  provisions  hereinbefore 
contained,  issued  in  either  of  said  di- 
visions may  be  served  and  executed  in 
either  or  both  of  the  divisions. 

"  §  8.  In  all  cases  of  removal  of  suits 
from  the  courts  of  the  State  of  Ten- 
nessee to  the  courts  of  the  United  States 
in  the  eastern  district  of  Tennessee,  such 


removal  shall  be  to  the  United  States 
courts  in  the  division  in  which  the  coun- 
ty is  situated  from  which  the  removal  is 
made ;  and  the  time  within  which  the 
removal  shall  be  perfected  in  so  far  as  it 
refers  to  or  is  regulated  by  the  terms  of 
the  United  States  courts,  shall  be  deemed 
to  refer  to  the  terms  of  the  United  States 
courts  in  such  division. 

"  §  9.  That  each  of  said  courts  shall 
be  held  in  a  building  to  be  provided  for 
that  purpose  by  the  State  or  municipal 
authorities  and  without  expense  to  the 
United  States. 

"  §  10.  This  act  shall  be  in  force  from 
and  after  the  first  day  of  July  anno 
Domini  eighteen  hundred  and  eighty ; 
and  all  acts  and  parts  of  acts  incon- 
sistent herewith  are  hereby  repealed." 


64        PLAINTIFFS   OR   DEFENDANTS   IN   A   SUIT   IN   EQUITY.     [CHAP.  II. 


CHAPTER  II. 

PERSONS   WHO  MAY  BE   PLAINTIFFS   OR   DEFENDANTS  IN  A 
SUIT  IN   EQUITY. 

§  28.  General  Rule  as  to  Persons  capable  of  being  Plaintiffs.  —  All 
persons  may  file  a  bill  in  equity  in  their  own  right,  except  alien 
enemies,  infants,  idiots,  and  lunatics,  married  women,  and  pos- 
sibly those  who  by  the  laws  of  a  State  have  been  declared  civilly 
dead. 

§  29.  States  as  Plaintiffs.  — A  State  may  sue  as  plaintiff  in  any 
court  of  the  United  States.1 

§  30.  Alien  Enemies  as  Plaintiffs.  —  Subjects  of  a  country  at 
war  with  the  United  States  cannot  sue  in  the  State  or  Federal 
courts  before  the  conclusion  of  peace  ;  unless  they  are  residents  of 
this  country  or  within  the  jurisdiction  of  one  of  our  allies.1  If  a 
complainant  become  an  alien  enemy  after  a  suit  has  been  begun, 
the  defense  may  be  interposed  by  plea  or  answer.2  The  effect  of 
such  a  defense  is  then,  however,  merely  to  suspend  the  cause  of 
action  and  suit,  not  to  dismiss  the  bill.3 

§  31.  Married  Women  as  Plaintiffs.  —  A  married  woman  orig- 
inally could  only  sue  when  joined  with  her  husband,  unless  he 
had  deserted  her,  and  was  without  the  realm  or  civilly  dead, 
when  she  could  sue  alone;1  or  unless  the  suit  concerned  her  sep- 
arate property,  when  she  was  obliged  to  sue  by  her  next  friend.2 
The  next  friend,  however,  was  chosen  by  herself ; 3  and  the  hus- 
band was  then  usually  made  a  party  defendant,  that  he  might 

§  29.   *  Amesr.  Kansas,  111  U.  S.  449;  Levine  v.  Taylor,  12  Mass.  8;  Hamersley 

United  States  v.  Louisiana,  123  U.  S.  32.  v.  Lambert,  2  Johns.  Ch.  (N.  Y.)  508;  Ex 

§  30.    1  Wilcox  v.  Henry,  1  Dall.  69;  parte  Boussmaker,  13  Ves.  71;  Wilcox  v. 

Crawford  v.  The  William   Penn,  1  Pet.  Henry,  1  Dall.  69;  Story's  Eq.  PI.  §  54.  But 

C.  C.  106 ;  Mumford  v.  Mumford,  1  Gall,  see  Mumford  v.  Mumford,  1  Gall.  366. 
366;  Clarke  v.  Morey,  10  Johns  (N.  Y.)  §  31.    1  Story's  Eq.  PI.  §  61 ;  Countess 

69 ;  2  Kent's  Com.  63.  of  Portland  v.  Prodgers,  2  Vern.  104. 

2  Bell  v.  Chapman,  10  Johns.  (N.  Y. )  2  Wake  v.  Parker,  2  Keen,  70;  Story's 
183  Eq.  PL  §  63. 

3  Hutchinson  v.  Brock,  11  Mass.  119 ;  3  Story's  Eq.  PI.  §  61 ;  Gamber  v. 
Parkinson  v.  Went  worth,  11  Mass.  26 ;  Atlee,  2  De  G.  &  Sm.  745. 


§  32.]  SUITS   ON   BEHALF   OF   INFANTS.  65 

have  an  opportunity  to  assert  any  claim  he  might  have  to  the 
subject-matter  of  the  suit.4  In  the  courts  of  the  United  States, 
however,  the  rule  was  early  laid  down  as  follows :  "  Where  the 
wife  complains  of  the  husband  and  asks  relief  against  him  she 
must  use  the  name  of  some  other  person  in  prosecuting  the  suit ; 
but  where  the  acts  of  the  husband  are  not  complained  of,  he 
would  seem  to  be  the  most  suitable  person  to  unite  with  her  in 
the  suit.  This  is  a  matter  of  practice  within  the  discretion  of  the 
court."5  In  the  Circuit  Courts  held  in  the  State  of  New  York, 
where  a  married  woman  has  substantially  all  the  powers  of  a 
spinster,  she  may  sue  in  equity,  as  if  she  were  single,  at  least  if 
she  be  a  citizen  of  that  State.6  When  a  suit  has  been  begun  by 
a  married  woman  alone  who  should  have  sued  by  her  next  friend, 
leave  to  amend  by  adding  to  the  title  the  name  of  a  next  friend 
will  always  be  granted.7 

§  32.  Suits  on  behalf  of  Infants.  —  The  equity  rules  provide  that 
"all  infants  and  other  persons  so  incapable  may  sue  by  their 
guardians,  if  any,  or  by  their  prochein  ami  ;  subject,  however,  to 
such  orders  as  the  court  may  direct  for  the  protection  of  infants 
and  other  persons."  l  It  has  never  been  decided  whether  this 
changes  the  former  practice,  which  was  as  follows  :  An  infant 
could  only  sue  by  his  next  friend,2  who  might  be  any  person  that 
would  undertake  the  suit  in  his  behalf,  subject,  however,  to  the 
costs  and  the  censure  of  the  court,  if  it  were  improperly  brought.3 
The  next  friend  might,  at  any  time,  be  removed  by  the  court 
either  summarily  or  after  a  reference,  if  it  seemed  for  the  best  in- 
terest of  the  infant  to  appoint  another.4  It  was  doubtful  whether 
insolvency  and  consequent  inability  to  respond  for  costs  was,  in 
itself,  a  ground  for  the  next  friend's  removal.5  That  might,  how- 
ever, be  a  reason  for  an  order  directing  him  to  give  security  for 
costs.6     The  court  might,  at  any  time,  order  a  reference  to  a 

4  Sigel  v.  Phelps,  7  Sim.  239 ;  Wake  v.         §  32.     i  Rule  87. 

Parker,  2  Keen,  70  ;  Story's  Eq.  PI.  §  63.  2  Rule  87;    Story's    Eq.    PI.    §    57; 

5  Mr.  Justice  McLean  in  Bein  v.  Heath,  Dudgeon  v.  Watson,  23  Fed.  R.  161; 
6  How.  228,  240.  See  Douglas  v.  Butler,  Brad  well  v.  Weeks,  1  J.  Ch.  (N.  Y.)  325. 
6  Fed.  R.  228.  3  Campbell  v.  Campbell,  2  M.  &  C.  25, 

6  Lorillard  v.  Standard  Oil  Co.,  2  Fed.  at  page  30 ;  Sale  v.  Sale,  1  Beav.  586 ; 
R.  902.     But  see  Taylor  v.  Holmes,  14  Starten  v.  Bartholomew,  6  Beav.  143. 
Fed.  R.  499,  514 ;  United  States  v.  Pratt  4  Nalder  v.  Hawkins,  2  M.  &  K.  243 ; 
Coal  &  Coke  Co.,  18  Fed.  R.  708 ;  O'Hara  Russell  v.  Sharpe,  1  Jac.  &  W.  482. 

v.  MacConnell,  93  U.  S.  150.  5  Anon.,  1  Ves.  Jr.  409. 

7  Douglas  v.  Butler,  6  Fed.  R.  228;  6  Fulton  v.  Rosevelt,  1  Paige  (N.  Y.), 
Taylor  v.  Holmes,  14  Fed.  R.  499.  178,  at  page  180. 


66       PLAINTIFFS   OK  DEFENDANTS   IN   A   SUIT   IN   EQUITY.      [CHAP.  II. 

master,  to  determine  the  propriety  of  a  suit ;  and,  if  it  appeared 
to  have  been  brought  against  the  infant's  interest,  would  stay  pro- 
ceedings in  it  or  dismiss  the  bill,  with  costs  to  be  paid  by  the  next 
friend."  This  could  be  done  even  without  a  reference.8  No  such 
reference  would,  it  seems,  be  ordered  at  the  request  of  the  next 
friend  himself,9  unless  there  were  another  cause  pending  by  rea- 
son of  which  the  infant's  property  was  subject  to  the  control  of 
the  court,  when  such  a  reference  might  be  ordered  at  the  insti- 
gation of  a  next  friend,  and  he  be  paid  his  costs  out  of  the 
estate  even  if  the  bill  were  finally  dismissed.10  An  application  to 
dismiss  a  bill  as  improperly  filed  on  behalf  of  an  infant  might  be 
made  by  a  person  "  as  next  friend  for  the  purpose  of  this  appli- 
cation," u  or  by  a  defendant  to  the  bill.12  It  seems  that  any 
motion  clearly  for  the  interest  of  an  infant  complainant  could 
be  made  by  a  next  friend  for  the  purpose  of  the  application,  when 
the  next  friend  who  filed  the  bill  refused  to  move.13  If  two  suits 
were  instituted  on  behalf  of  the  same  infant  for  the  same  purpose 
by  two  next  friends,  the  court  would  direct  a  master  to  inquire 
which  is  most  for  the  infant's  benefit.14  A  bill  might  be  filed  by 
a  next  friend  on  behalf  of  a  child  still  in  its  mother's  womb.15 

If  an  infant  were  made  co-plaintiff  with  others,  and  it  appeared 
that  it  would  be  more  for  his  advantage  that  he  should  be  made 
a  defendant,  an  order  to  strike  out  his  name  as  plaintiff,  and  to 
make  him  a  defendant,  might  be  obtained  upon  motion.16  When 
a  bill  was  filed  in  behalf  of  an  infant,  his  coming  of  age  did  not 
abate  the  suit  ;  but  he  might  then  elect  whether  he  would  pro- 
ceed with  it  or  not.17  If  he  chose  to  go  on  with  the  suit,  all  fur- 
ther proceedings  could  be  carried  on  without  any  amendment  or 
the  filing  of  a  supplemental  bill.18  He  was  then  liable  for  all 
costs  of  the  suit,  as  if  he  had  filed  the  bill  after  he  came  of  age.19 
Otherwise,  he  was  not  personally  chargeable  with  costs;20  unless 


7  Da  Costa  v.  Da  Costa,  3  P.  Wms.  140 ;        "  Calvert  on  Parties  (2d  ed.),  418. 
Nalder  v.  Hawkins,  2  M.  &  K.  243 ;  Sale        15  Luterel's  Case,  cited  Prec.  Ch.  50 ; 
v.  Sale,  1  Beav.  586.  Musgrave  v.  Parry,  2  Vera.  710. 

8  Sale  v.  Sale,  1  Beav.  586.  16  Tappen  v.  Normaii,  11  Ves.  563. 

9  Jones  v.  Powell,  2  Mer.  141.  "  Guy  v.  Guy,  2  Beav.  460. 

10  Taner  v.  Ivie,  2  Ves.  Sen.  466.  18  Hoffman's    Ch.    Pr.    60 ;    Daniell's 

11  Guy  v.  Guy,  2  Beav.  460.  Ch.  Pr.  (2d  Am.  ed.),  102. 

12  Fox  v.  Suwerkrop,  1  Beav.  583.  19  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  102. 

13  Furtado  v.  Furtado,  6  Jur.  227  ;  Cox        20  Waring  v.  Crane,  2  Paige  (N.  Y.), 
v.  Wright,  9  Jur.  (n.  s.)  981 ;  Guy  v.  Guy,  79. 

2  Beav.  460. 


§  33.]  SUITS    ON    BEHALF   OF   IDIOTS,   LUNATICS,    ETC.  67 

he  made  a  motion  to  dismiss  the  bill,  which  it  seems  could  only  be 
done  upon  the  payment  of  costs  by  himself,21  if  he  could  not  es- 
tablish that  the  bill  was  improperly  filed  by  his  next  friend.22  If 
the  next  friend  died  during  the  infant's  minority,  and  the  latter 
took  no  step  in  the  cause  after  he  had  come  of  age,  the  defendant 
might  have  the  bill  dismissed,  but  without  costs,  since  there  would 
then  be  no  one  living  who  was  liable  to  pay  them.23 

§  33.  Suits  on  behalf  of  Idiots,  Lunatics,  and  Persons  of  Weak 
Mind.  —  Idiots  and  lunatics  sue  by  their  committees  or  guardians, 
if  they  have  any,  otherwise  by  next  friend.1  It  is  the  usual  prac- 
tice to  join  them  as  plaintiffs  with  their  representatives,  though  it 
might  be  held  unnecessary  to  do  so  when  one  has  a  committee, 
authorized  by  statute  to  sue  in  his  name.2  If  the  interest  of  the 
committee  be  adverse  to  that  of  his  ward,  the  latter  should  sue  by 
a  next  friend.3  Although  the  practice  is  unsettled,  it  would  be 
advisable  to  have  the  next  friend  appointed  by  the  court.4  If 
a  plaintiff  become  a  lunatic  after  the  institution  of  a  suit,  a  sup- 
plemental bill  may  be  filed  in  the  joint  names  of  the  lunatic  and 
of  the  committee  of  his  estate,  which  will  answer  the  same  pur- 
pose as  a  bill  of  revivor  in  procuring  the  benefit  of  former  pro- 
ceedings.5 If  a  committee  die  and  a  new  committee  is  appointed 
after  a  suit  has  been  instituted  by  the  former  for  the  benefit  of 
his  idiot  or  lunatic,  the  proper  way  of  continuing  the  suit  is  by  a 
supplemental  bill  filed  by  the  idiot  or  lunatic  and  the  new  com- 
mittee.6 In  England,  a  committee,  usually  before  the  institution 
of  a  suit,  prayed  the  sanction  of  the  Lord  Chancellor  by  a  petition, 
which  was  often  referred  to  a  master."  If  a  person  of  full  age  is 
neither  an  idiot  nor  a  lunatic,  and  is  yet  incapable  of  managing 
his  affairs,  the  court  may  appoint  a  next  friend  to  sue  for  him.8  If 
a  bill  has  been  filed  in  the  name  of  a  plaintiff,  who,  at  the  time  of 

21  Waring  v.  Crane,  2  Paige  (N.  Y.),  4  Compare  Attorney-General  v.  Tiler; 
79.                                                                     1  Dickens,  378 ;   Hoffman's  Ch.  Pr.  61  ; 

22  Waring  v.  Crane,  2  Paige  (N.  Y.),  79.     Story's  Eq.  PI.  §  64,  and  notes. 

23  Turner  v.  Turner,  2  Stra.  708.  5  See  Brown  v.  Clark,  3  Woodeson's 
§  33.  i  Rule  87 ;  Hoffman's  Ch.  Pr.  61.    Lect.  378  ;  Daniell's  Ch.  Pr.  108. 

2  See  Ortley  v.  Messere,  7  Johns.  Ch.         6  In  re  Reynolds,  Shelf,  on  Lun.  417  ; 

(N.  Y.)  139  ;  Harrison  v.  Rowan,  4  Wash.  Daniell's  Ch.  Pr.  108. 
C.  C.  202;  Palmer,  Attorney-General  v.         ~  In   re  Webb,   Shelf,   on  Lun.   417  , 

Parkhurst,  1  Chan.  Cas.  112  ;  Gorham  v.  Daniell's  Ch.  Pr.  108. 
Gorham,  3  Barb.  Ch.   (N.  Y.)  24;  Hoff-  8  Wartnaby  v.  Wartnaby,  Jac.  377; 

man's  Ch.  Pr.  61  ;  Story's  Eq.  PI.  §  65,  Owing's    Case,   1   Bland   (Md.),   370,   at 

and  notes.  page  373  ;  Story's  Eq.  PI.  §  66. 

8  Compare  Attorney-General  v.  Tiler, 
1  Dick.  378  ;  Hoffman's  Ch.  Pr  61. 


68        PLAINTIFFS   OR   DEFENDANTS   IN   A   SUIT   IN   EQUITY.      [CHAP.  II. 

filing  it,  is  in  a  state  of  mental  incapacity,  it  may,  on  motion,  be 
taken  off  the  file.9  If,  however,  after  a  suit  has  been  properly 
instituted,  a  plaintiff  becomes  imbecile,  the  bill  cannot  for  that 
reason  be  taken  off  the  file.10 

§  34.  Capacity  of  Foreign  Executors,  Administrators,  and  Receivers 
to  sue.  —  Foreign  executors  and  administrators,  under  which  term 
are  included  those  appointed  in  other  States  than  that  where  the 
court  is  held,  cannot  sue  until  they  have  taken  out  ancillary  let- 
ters of  administration.1  It  is  doubtful  whether  or  not  foreign 
receivers  can  sue.2  The  better  rule  would  seem  to  be,  that  they 
can  always  sue,  no  matter  where,  unless  by  so  doing  they  would 
appropriate  assets  upon  which  domestic  creditors  would  other- 
wise have  a  prior  lien,  or  otherwise  impugn  the  public  policy  of 
the  State  in  which  the  action  is  brought.3 

§  35.  "Who  may  be  Defendants  to  a  Bill  in  Equity.  —  All  persons 
may  be  made  defendants  to  a  bill  in  equity  except  the  United 
States  ; x  foreign  States  and  sovereigns  for  acts  done  in  a  political 
capacity ; 2  "  one  of  the  United  States  by  citizens  of  another 
State,  or  by  citizens  or  subjects  of  any  Foreign  State  ;  "3  receiv- 
ers appointed  by  State  courts  without  the  leave  of  such  courts  ;  * 
and  foreign  executors  and  administrators,5  unless  they  have 
assets  within  the  jurisdiction  of  the  court  where  the  bill  is  filed.6 
Whether  a  suit  can  be  brought  against  the  President  of  the 
United  States  is  undecided.7 

§  36.  The  United  States  as  a  Defendant.  —  The  United  States 
may  waive  its  exemption  from  suit  by  statute,1  but  not  by  the 

9  Wartnaby  v.  Wartnaby,  Jac.  377  ;  2  Duke  of  Brunswick  v.  King  of  Han- 
Story's  Eq.  PI.  §  66.  over,  6  Beav.  1  ;  Hullett  v.  King  of  Spain, 

w  Wartnaby  v.  Wartnaby,  Jac.  377.  2  Bligh  N.  R.  31. 

§34.  1  Fenwick  v.  Sears,  1  Cranch, 259;         3  Eleventh   Amendment  to  Constitu- 

Dixon  v.  Ramsay,  3  Cranch,  319 ;  Doe  v.  tion. 

McFarland,    9    Cranch,    151;     Kerr    v.         4  Barton  v.  Barbour,  104  U.  S.  126; 

Moon,  9  Wheat.  565  ;  Mason  v.  Hartford,  Thompson  v.  Scott,  4  Dill.  508  ;  Express 

Providence,  &  Fishkill  R.  R.  Co.,  19  Fed.  Company  v.  Railroad  Company,  99  U.  S. 

R.  53.  191. 

2  Booth  v.  Clark,  17  How.  322 ;  Brig-  5  Vaughn  v.  Northrup,  15  Pet.  1 ; 
ham  v.   Luddington,    12    Blatchf.    237 ;  Story's  Eq.   PI.  §  179. 

Olney  v.  Tanner,  10  Fed.  R.  101;  Hazard         6  Sandilands  v.  Innes,  3  Simons,  263; 

v.  Durant,  19  Fed.  R.  471,  476.  McNamara  v.  Dwyer,  7  Paige  (N.  Y.), 

3  Ex  parte  Norwood,  3  Biss.  504;  239;  Campbell  v.  Tousey,  7  Cow.  (N.  Y.) 
Hunt  ».  Jackson,  5  Blatchf.  349;  Cuy-  64. 

kendall  v.  Miles,  10  F'ed.  R.  342  ;  Hurd         7  See  Mississippi  v.  Johnson,  4  Wall. 

v.  Elizabeth,  41  N.  J.  Law  (12  Vroom)  1.  475. 

§  35.    i  Carr  v.  United  States,  98  U.  S.  §  36.     *  United    States   v.  Clarke,   8 

433.  Pet.  436 ;  The  Siren,  7  Wall.  152. 


§  36.]        THE  UNITED  STATES  AS  A  DEFENDANT.  69 

act  of  any  of  its  officers.2  When,  however,  the  United  States 
institute  a  suit,  it  waives  its  exemption  so  far  as  to  allow  a  pres- 
entation by  the  defendant  of  any  set-off,  legal  and  equitable,  to 
the  extent  of  the  demand  made  or  property  claimed ;  and  when 
it  proceeds  in  rem,  it  opens  to  consideration  all  claims  and  equities 
in  regard  to  the  property  libelled.3  It  has  been  held  that  eject- 
ment will  lie  against  public  officers  holding  land  for  governmental 
purposes  in  the  name  of  the  United  States ; 4  but  it  was  intimated 
that  an  injunction  will  not  be  granted  to  enjoin  an  officer  of  the 
United  States  from  infringing  a  patent  while  acting  in  its  service, 
and  that  the  remedy  of  the  patentee,  if  it  exists  at  all,  is  in  the 
Court  of  Claims.5  A  statute  passed  in  1887  provides  that  in 
"  all  claims  founded  upon  the  Constitution  of  the  United  States 
or  any  law  of  Congress,  except  for  pensions,  or  upon  any  regula- 
tion of  an  executive  department,  or  upon  any  contract,  express 
or  implied,  with  the  government  of  the  United  States,  or  for 
damages,  liquidated  or  unliquidated,  in  cases  not  sounding  in 
tort,  in  respect  of  which  claims  the  party  would  be  entitled  to 
redress  against  the  United  States  either  in  a  court  of  law,  equity, 
or  admiralty  if  the  United  States  were  suable,6  ...  the  District 
Courts  of  the  United  States  shall  have  concurrent  jurisdiction 
with  the  Court  of  Claims  as  to  all  matters,7  where  the  amount  of 
the  claim  does  not  exceed  one  thousand  dollars ;  and  the  Circuit 
Courts  of  the  United  States  shall  have  such  concurrent  jurisdic- 
tion in  all  cases  where  the  amount  of  such  claim  exceeds  one 
thousand  dollars,  and  does  not  exceed  ten  thousand  dollars.  All 
cases  brought  and  tried  under  the  provisions  of  this  Act  shall  be 
tried  by  the  court  without  a  jury,8  .  .  .  provided,  however,  that 
nothing  in  this  section  shall  be  construed  as  giving  to  either  of 
the  courts  herein  mentioned,  jurisdiction  to  hear  and  determine 
claims  growing  out  of  the  late  civil  war,  and  commonly  known 
as  '  war  claims,'  or  to  hear  and  determine  other  claims,  which  have 
heretofore  been  rejected,  or  reported  on  adversely  by  any  court, 

2  Carr  v.  United  States,  98  U.  S.  433.  5  James  v.  Campbell,  104  U.  S.  356, 

8  Mr.  Justice  Field  in  The  Siren,  7  359;  Hollister  v.  Benedict  Manuf.  Co., 

Wall.   152,   154.     A    more    liberal    rule  113  U.  S.  59,  67. 

against  the  government  is  suggested  in  6  Act  of  March  3,  1887,  24  St.  at  L. 

Fifth    National    Bank  v.  Long,  7   Biss.  ch.  359,  §  1,  p.  605. 

502  ;  Elliot  v.  Van  Voorst,  3  Wall.  Jr.,  7  Act  of  March  3,   1887,  24  St.  at  L. 

299;    Briggs   v.   The    Light    Boats,    11  ch.  359,  §  2,  p.  505. 

Allen  (Mass.),  157.  8  Act  of  March  3,  1887,  24  St.  at  L. 

*  United  States  v.  Lee,  106  U.  S.  196.  ch.  359,  §  1,  p.  505. 


70        PLAINTIFFS   OR   DEFENDANTS   IN   A    SUIT   IN    EQUITY.      [CHAP.  II. 

department,  or  commission  authorized  to  hear  or  determine  the 
same."  ,J  The  same  courts  are  similarly  given  jurisdiction  over 
"all  set-offs,  counter-claims,  claims  for  damages,  whether  liquid- 
ated or  unliquidated,  or  other  demands  whatsoever  on  the  part 
of  the  government  of  the  United  States  against  any  claimant 
against  the  government,"  in  such  courts.10  The  same  act  reg- 
ulates the  practice  in  such  suits  in  the  circuit  and  district 
courts  as  follows  :  The  plaintiff  must  file  a  petition  duly  veri- 
fied with  the  clerk  of  the  respective  courts  having  jurisdiction 
of  the  case,  and  in  the  district  where  the  plaintiff  resides.  Such 
petition  shall  set  forth  the  full  name  and  residence  of  the  plain- 
tiff, the  nature  of  his  claim,  and  a  succinct  statement  of  the  facts 
upon  which  the  claim  is  based,  the  money  or  any  other  thing 
claimed,  or  the  damages  sought  to  be  recovered,  and  must  pray 
the  court  for  a  judgment  or  decree  based  upon  the  facts  and  the 
law.11  The  plaintiff  must  cause  a  copy  of  his  petition,  after 
filino-  the  same,  to  be  served  upon  the  district  attorney  of  the 
United  States  in  the  district  wherein  suit  is  brought,  and  must 
mail  another  copy  by  registered  letter  to  the  Attorney-General 
of  the  United  States ;  and  must  thereupon  file  with  the  clerk  of 
the  court  wherein  the  suit  is  instituted,  an  affidavit  of  such  ser- 
vice and  mailing.12  The  United  States  appears  by  the  district 
attorney,  and  is  allowed  sixty  days,  or  as  much  more  time  as  the 
court  may  in  its  discretion  allow,  within  which  to  file  a  plea, 
answer,  or  demurrer  ;  "  and  to  file  a  notice  of  any  counter-claim, 
set-off,  claim  for  damages,  or  other  demand  or  defence  whatso- 
ever, of  the  government  in  the  premises :  provided,  that  should 
the  district  attorney  neglect  or  refuse  to  file  the  plea,  answer, 
demurrer,  or  defence,  as  required,  the  plaintiff  may  proceed  with 
the  case  under  such  rules  as  the  court  may  adopt  in  the  prem- 
ises." But  the  plaintiff  cannot  have  a  judgment  or  decree  in  his 
favor  unless  he  establishes  the  same  by  proof,  satisfactory  to  the 
court.13  In  the  Court  of  Claims  the  claimant  must  "  in  all  cases 
fully  set  forth  in  his  petition  the  claim,  the  action  thereon  in 
Congress,  or  by  any  of  the  departments,  if  such  action  has  been 
had ;  what  persons  are  owners  thereof  or  interested  therein ; 
when  and  upon  what  consideration  such  persons  became  so  in- 

9  24  St.  at  L.  ch.  359,  §  1,  p.  505.  12  24  St.  at  L.  ch.  359,  §  6,  p.  506. 

i°  24  St.  at  L.  ch.  359,  §  1,  p.  505.  13  24  St.  at  L.  ch.  359,  §  6,  p.  506. 

ii  24  St.  at  L.  ch.  359,  §  5,  p.  506. 


§  37.]      LIABILITY   OF   STATES   TO   SUITS   BY    PRIVATE   PERSONS.         71 

terested  ;  that  no  assignment  or  transfer  of  said  claim,  or  of  any 
part  thereof,  or  interest  therein,  has  been  made,  except  as  stated 
in  the  petition;  that  said  claimant  is  justly  entitled  to  the 
amount  therein  claimed  from  the  United  States,  after  allowing 
all  just  credits  and  off-sets ;  that  the  claimant  and,  where  the 
claim  has  been  assigned,  the  original  and  every  prior  owner 
thereof,  if  a  citizen,  has  at  all  times  borne  true  allegiance  to  the 
government  of  the  United  States,  and,  whether  a  citizen  or  not, 
has  not  in  any  way  voluntarily  aided,  abetted,  or  given  encour- 
agement to  rebellion  against  the  said  government;  and  that  he 
believes  the  facts  as  stated  in  said  petition  to  be  true.  And  the 
said  petition  shall  be  verified  by  the  affidavit  of  the  claimant,  his 
agent  or  attorney."14  It  is  the  duty  of  the  court,  acting  under 
the  Act  of  1887,  to  cause  a  written  opinion  to  be  filed  in  the 
cause,  "  setting  forth  the  specific  findings  by  the  court  of  the 
facts  therein,  and  the  conclusions  of  the  court  upon  all  questions 
of  law  involved  in  the  case,  and  to  render  judgment  thereon.  If 
the  suit  be  in  equity  or  admiralty,  the  court  shall  proceed  with 
the  same  according  to  the  rules  of  such  courts."  15  If  the  United 
States  puts  in  issue  the  right  of  the  plaintiff  to  recover,  the 
court  may  in  its  discretion  allow  costs  to  the  prevailing  party, 
which,  however,  cannot  exceed  what  is  actually  incurred  for 
witnesses,  "  and  for  summoning  the  same,  and  fees  paid  to  the 
clerk  of  the  court."  16  From  the  date  of  final  judgment  or  decree 
against  the  government  interest  is  allowed  "  to  be  computed 
thereon,  at  the  rate  of  four  per  centum  per  annum,  until  the 
time  where  an  appropriation  is  made  for  the  payment  of  the 
judgment  or  decree."  17  An  appeal  or  writ  of  error  must  be 
taken,  if  at  all,  by  the  district  attorney,  at  the  direction  of  the 
Attorney-General,  within  six  months  after  the  judgment  or  de- 
cree.18 Otherwise,  the  practice  in  all  courts  in  suits  brought 
under  this  statute  is  similar  to  that  in  other  suits,  with  "  such 
additions  and  modifications  as  said  courts  may  adopt." 19 

§  37.  Liability  of  States  to  Suits  by  Private  Persons.  —  Under 
the  Constitution  of  the  United  States  as  originally  adopted,  it 
was  provided  that  the  judicial  power  of  the  United  States  should 
extend  to  controversies  "  between  a  State  and  citizens  of  another 

M  U.  S.  R.  S.  §  1072.  "  24  St.  at  L.  ch.  350,  §  10,  p.  507. 

15  24  St.  at  L.  ch.  359,  §  7,  p.  506.  18  24  St.  at  L.  ch.  359,  §  10,  p.  507. 

16  24  St.  at  L.  ch.  359,  §  15,  p.  508.  19  24  St.  at  L.  ch.  359,  §  4,  p.  506. 


72        PLAINTIFFS   OK  DEFENDANTS   IN   A   SUIT   IN   EQUITY.      [CHAP.  II. 

State."1  This  was  held  to  subject  a  State  to  liability  to  an  action 
by  a  citizen  of  another  State.2  This  decision  was  opposed  to  the 
views  of  Marshall  and  others,  as  expressed  in  the  conventions 
which  ratified  the  Constitution  ;3  and  was  repugnant  to  the  feel- 
ings of  the  people.  Consequently,  the  Eleventh  Amendment 
was  adopted.  This  enacted  that  "  the  Judicial  Power  of  the 
United  States  shall  not  be  construed  to  extend  to  any  suit  in 
law  or  equity,  commenced  or  prosecuted  against  one  of  the 
United  States  by  citizens  of  another  State,  or  by  citizens  or  sub- 
jects of  any  Foreign  State."  It  has  effectually  prevented  the 
successful  prosecution  by  a  private  individual  of  a  suit  against  a 
State  as  a  party  defendant.  Cases  have,  however,  often  arisen, 
where,  although  a  State  was  not  a  formal  party,  yet  it  had  rights 
which  it  claimed  would  be  affected  by  the  determination  of  a 
suit  before  the  court.  To  accurately  determine  the  jurisdiction 
of  the  Federal  courts  in  these  cases  has  been  a  very  difficult  and 
delicate  matter ;  and  the  questions  which  thus  constantly  arise 
are  hard  to  answer.  The  fact  that  a  State  is  not  named  as  a 
party  to  the  record  does  not  of  itself  remove  a  case  from  the 
terms  of  the  Eleventh  Amendment.4  Whether  a  State  is  an 
actual  party  in  the  sense  of  the  prohibition  must  be  determined 
by  a  consideration  of  the  nature  of  the  case  as  presented  by 
the  whole  record.5  The  subject  was  recently  discussed  by  Mr. 
Justice  Miller  with  the  apparent  approval  of  a  majority  of  the 
Supreme  Court :  "  It  may  be  accepted  as  a  point  of  departure 
unquestioned,  that  neither  a  State  nor  the  United  States  can  be 
sued  as  defendant  in  any  court  in  this  country  without  their  con- 
sent, except  in  the  limited  class  of  cases  in  which  a  State  may 
be  made  a  part}7  in  the  Supreme  Court  of  the  United  States,  by 
virtue  of  the  original  jurisdiction  conferred  on  this  court  by  the 
Constitution.  This  principle  is  conceded  in  all  the  cases ;  and 
whenever  it  can  be  clearly  seen  that  the  State  is  an  indispen- 
sable party  to  enable  the  court,  according  to  the  rules  which 
govern  its  procedure,  to  grant  the  relief  sought,  it  will  refuse  to 
take  jurisdiction.  But  in  the  desire  to  do  that  justice,  which  in 
many  cases  the  courts  can  see  will  be  defeated  by  an  unwar- 

§  37.    i  Art.  III.  Sec.  2.  109  U.  S.  446;  Hagood  v.  Southern,  117 

2  Chisholra  v.  Georgia,  2  Dall.  419.  U.  S.  52 ;  In  re  Ayers,  123  U.  S.  443. 

3  See  Elliott's  Debates.  5  Poindexter  v.  Greenhow,  114  U.  S. 
*  Elliott  v.  Wiltz,  107  U.  S.  711 ;  Cun-  270,  287 ;  In  re  Ayers,  123  D.  S.  443, 

ningham  v.  Macon  &  Brunswick  R.  R.  Co.,     492. 


§  37.]      LIABILITY   OF   STATES   TO   SUITS   BY   PRIVATE   PERSONS.         73 

ranted  extension  of  this  principle,  they  have  in  some  instances 
gone  a  long  way  in  holding  the  State  not  to  be  a  necessary  party, 
though  some  interest  of  hers  may  be  more  or  less  affected  by  the 
decision.  In  many  of  these  cases  the  action  of  the  court  has 
been  based  upon  principles  whose  soundness  cannot  be  disputed. 
A  reference  to  a  few  of  them  may  enlighten  us  in  regard  to  the 
case  now  under  consideration.  1.  It  has  been  held  in  a  class 
of  cases,  where  property  of  the  State,  or  property  in  which  the 
State  has  an  interest,  comes  before  the  court  and  under  its  con- 
trol, in  the  regular  course  of  judicial  administration,  without 
being  forcibly  taken  from  the  possession  of  the  government,  the 
court  will  proceed  to  discharge  its  duty  in  regard  to  that  prop- 
erty, and  the  State,  if  it  choose  to  come  in  as  plaintiff,  as  in  prize 
cases,  or  to  intervene  in  other  cases  where  she  may  have  a  lien 
or  other  claim  on  the  property,  will  be  permitted  to  do  so,  but 
subject  to  the  rule  that  her  rights  will  receive  the  same  con- 
sideration as  any  other  party  interested  in  the  matter,  and  be 
subjected  in  like  manner  to  the  judgment  of  the  court.6  .  .  . 
2.  Another  class  of  cases  is  where  an  individual  is  sued  in  tort 
for  some  act  injurious  to  another  in  regard  to  person  or  property, 
to  which  his  defence  is  that  he  has  acted  under  the  orders  of  the 
government.  In  these  cases  he  is  not  sued  as,  or  because  he  is, 
the  officer  of  the  government,  but  as  an  individual,  and  the  court 
is  not  ousted  of  jurisdiction  because  he  asserts  authority  as  such 
officer.  To  make  out  his  defence  he  must  show  that  his  authority 
was  sufficient  in  law  to  protect  him.7  ...  3.  A  third  class,  which 
has  given  rise  to  more  controversy,  is  where  the  law  has  imposed 
upon  an  officer  of  the  government  a  well-defined  duty  in  regard 
to  a  specific  matter,  not  affecting  the  general  powers  or  functions 
of  the  government,  but  in  the  performance  of  which  one  or  more 
individuals  have  a  distinct  interest  capable  of  enforcement  by 
judicial  process.  Of  this  class  are  writs  of  mandamus  to  public 
officers.8  .  .  .  But  in  all  such  cases,  from  the  nature  of  the  rem- 

6  Cunningham  v.  Macon  &  Brunswick  9  Cranch,  11  ;  Wilcox  v  Jackson,  13  Pet 
R,  R.  Co.,  109  U.  S.  446,  451,  452 ;  cit-  498  ;  Brown  v.  Huger,  21  How.  305 ; 
ing  on  this  point  The  Siren,  7  Wall.  152,  Grisar  v.  McDowell,  6  Wall.  363  ;  United 
157;  The  Davis,  10  Wall.  15,  20;  Clark  States  v.  Lee,  106  U.  S.  196;  Virginia 
v.  Barnard,  108  U.  S.  436.  Coupon  Cases,  114  U.  S.  269. 

7  Cunningham  v.  Macon  &  Brunswick  8  Cunningham  v.  Macon  &  Brunswick 
R.  R.  Co.,  109  U.  S.  446,  452;  citing  R.  R.  Co.,  109  U  S.  446,  452,  453;  citing 
Mitchell  v.  Harmony,  13  How.  115 ;  Bates  Marbury  v.  Madison,  1  Cranch,  137  ;  Ken- 
v.  Clark,  95  U.  S.  204  ;  Meigs  v.  McClung,  dall  v.  Stokes,  3  How.  87  ;  United  States 


74        PLAINTIFFS    OR   DEFENDANTS   IN   A   SUIT   IN   EQUITY.      [CHAP.  II. 

edy  of  mandamus,  the  duty  to  be  performed  must  be  merely 
ministerial,  and  must  involve  no  element  of  discretion  to  be 
exercised  by  the  officer.  It  has,  however,  been  much  insisted  on 
that  in  this  class  of  cases,  where  it  shall  be  found  necessary  to 
enforce  the  rights  of  the  individual,  a  court  of  chancery  may,  by 
a  maudatory  decree  or  by  an  injunction,  compel  the  performance 
of  the  appropriate  duty,  or  enjoin  the  officer  from  doing  that 
which  is  inconsistent  with  that  duty  and  with  plaintiff's  rights 
in  the  premises.  Perhaps  the  strongest  assertion  of  this  doctrine 
is  found  in  the  case  of  Davis  v.  Gray,  16  Wall.  203.  In  that 
case,  the  State  of  Texas,  having  made  a  grant  of  the  alternate 
sections  of  land  along  which  a  railroad  should  thereafter  be 
located,  and  the  railroad  company  having  surveyed  the  land  at 
its  own  expense  and  located  its  road  through  it,  the  commis- 
sioner of  the  State  land  office  and  the  governor  of  the  State 
were,  in  violation  of  the  rights  of  the  company,  selling  and 
delivering  patents  for  the  sections  to  which  the  company  had 
an  undoubted  vested  right.  The  circuit  court  enjoined  them 
from  doing  this  by  its  decree,  which  was  affirmed  in  this  court.9 
.  .  .  But  it  is  clear  that  in  enjoining  the  governor  of  the  State  in 
the  peformance  of  one  of  his  executive  functions,  the  case  goes 
to  the  verge  of  sound  doctrine,  if  not  beyond  it,  and  that  the 
principle  should  be  extended  no  further.  Nor  was  there  in  that 
case  any  affirmative  relief  granted  by  ordering  the  governor  and 
land  commissioner  to  perform  any  act  towards  perfecting  the 
title  of  the  company.  The  case  of  The  Board  of  Liquidation  v. 
Me  Comb,  92  U.  S.  531,  is  to  the  same  effect.  The  board  of 
liquidation  was  charged  by  the  statute  of  Louisiana  with  certain 
duties  in  regard  to  issuing  new  bonds  of  the  State  in  place  of 
old  ones  which  might  be  surrendered  for  exchange  by  the  hold- 
ers of  the  latter.  The  amount  of  new  bonds  to  be  issued  was 
limited  by  a  constitutional  provision.  McComb,  the  owner  of 
some  of  the  new  bonds  already  issued,  filed  his  bill  to  restrain 
the  board  from  issuing  that  class  of  bonds  in  exchange  for  a 
class  of  indebtedness  not  included  within  the  purview  of  the 
statute,  on  the  ground  that  his  own  bonds  would  thereby  be 
rendered  less  valuable.     This  court  affirmed  the  decree  of  the 

v.  Schurz,  102  U.  S.  378 ;  United  States         9  Cunningham  v.  Macon  &  Brunswick 
v.  Boutwell,  17  Wall.  604.    See  Rolston  v.    R.  R.  Co.,  109  U.  S.  446,  453. 
Missouri  Fund  Commissioners,  120  U.  S. 
390,411. 


§  37.]      LIABILITY   OF   STATES   TO   SUITS   BY   PRIVATE    PERSONS.        75 

circuit  court  enjoining  the  board  from  exceeding  its  power  in 
taking  up  by  the  new  issue  a  class  of  State  indebtedness  not 
within  the  provisions  of  the  law  on  that  subject.  In  the  opinion 
in  that  case  the  language  used  by  Mr.  Justice  Bradley  well  and 
truly  thus  expresses  the  rule  and  its  limitations  :  '  The  ob- 
jections to  proceeding  against  State  officers  by  mandamus  or 
injunction  are,  first,  that  it  is  in  effect  proceeding  against  the  State 
itself ;  and,  second,  that  it  interferes  with  the  official  discretion 
vested  in  the  officers.  It  is  conceded  that  neither  of  these  can 
be  done.  A  State,  without  its  consent,  cannot  be  sued  as  an 
individual ;  and  a  court  cannot  substitute  its  own  discretion  for 
that  of  executive  officers,  in  matters  belonging  to  the  proper 
jurisdiction  of  the  latter.  But  it  has  been  settled  that  where  a 
plain  official  duty  requiring  no  exercise  of  discretion  is  to  be 
performed,  and  performance  is  refused,  any  person  who  will  sus- 
tain a  personal  injury  by  such  refusal  may  have  a  mandamus  to 
compel  performance  ;  and  when  such  duty  is  threatened  to  be 
violated  by  some  official  act,  any  person  who  will  sustain  per- 
sonal injury  thereby,  for  which  adequate  compensation  cannot 
be  had  at  law,  may  have  an  injunction  to  prevent  it.'  It  is 
believed  that  this  is  as  far  as  the  court  has  gone  in  granting 
relief  in  this  class  of  cases.  The  case  of  Osborne  v.  Bank  of 
the  United  States,  9  Wheat.  738,  often  referred  to,  was  decided 
upon  this  principle,  and  goes  no  further ;  for,  in  that  case,  a 
preliminary  injunction  of  the  court  forbidding  a  State  officer 
from  placing  the  money  of  the  bank,  which  he  had  seized,  in  the 
treasury  of  the  State,  having  been  disregarded,  the  final  decree 
corrected  this  violation  of  the  injunction,  by  requiring  the  res- 
toration of  the  money  thus  removed.  See  Louisiana  v.  Jumel, 
107  U.  S.  711.  On  the  other  hand,  in  the  cases  of  Louisiana  v. 
Jumel,  and  Elliott  v.  Wiltz,  107  U.  S.  711,  decided  at  the  last 
term,  very  ably  argued  and  very  fully  considered,  the  court 
declined  to  go  any  further.  In  the  first  of  these  cases  the  owners 
of  the  new  bonds  issued  by  the  board  of  liquidation  mentioned 
in  McComb's  case,  above  cited,  brought  the  bill  in  equity  in  the 
Circuit  Court  of  the  United  States,  to  compel  the  auditor  of 
the  State  and  the  treasurer  of  the  State  to  pay,  out  of  the  treas- 
ury of  the  State,  the  overdue  interest  coupons  on  their  bonds, 
and  to  enjoin  them  from  paying  any  part  of  the  taxes  collected 
for  that  purpose  for  the  ordinary  expenses  of  the  government. 


76        PLAINTIFFS    OR   DEFENDANTS   IN   A   SUIT   IN   EQUITY.      [CHAP.  II. 

They  at  the  same  time  applied  to  the  State  court  for  a  writ  of 
mandamus  to  the  same  officers,  which  suit  was  then  removed 
into  the  Circuit  Court  of  the  United  States.  In  this  they  asked 
that  these  officers  be  commanded  to  pay,  out  of  the  mone}rs  in 
the  treasury,  the  taxes  which  they  maintained  had  been  assessed 
for  the  purpose  of  paying  the  interest  on  their  bonds,  and  to 
pay  such  sums  as  had  already  been  diverted  from  that  purpose 
to  others  by  the  officers  of  the  government.  The  Circuit  Court 
refused  the  relief  asked  in  such  case,  and  this  court  affirmed 
the  judgment  of  that  court.10  .  .  .  We  think  the  foregoing  cases 
mark,  with  reasonable  precision,  the  limit  of  the  power  of  the 
courts  in  cases  affecting  the  rights  of  the  State  or  Federal  gov- 
ernments in  suits  to  which  they  are  not  voluntas  parties.  In 
actions  at  law,  of  which  mandamus  is  one,  where  an  individual 
is  sued,  as  for  injuries  to  persons  or  property,  real  or  personal,  or 
in  regard  to  a  duty  which  he  is  personally  bound  to  perform,  the 
government  does  not  stand  behind  him  to  defend  him.  If  he 
has  the  authority  of  law  to  sustain  him  in  what  he  has  done, 
like  any  other  defendant  he  must  show  it  to  the  court  and 
abide  the  result.  In  either  case  the  State  is  not  bound  by  the 
judgment  of  the  court,  and  generally  its  rights  remain  unaffected. 
It  is  no  answer  for  the  defendant  to  say,  I  am  an  officer  of  the 
government  and  acted  under  its  authority,  unless  he  shows 
the  sufficiency  of  that  authority.  Courts  of  Equity  proceed  upon 
different  principles  in  regard  to  parties."  u 

In  accordance  with  these  views,  it  was  held  in  the  case  from 
which  the  foregoing  extracts  are  taken ;  that  a  suit  by  a  bond- 
holder against  the  officers  of  a  State  and  a  railroad  company 
whose  bonds  he  held,  to  have  a  sale  of  mortgaged  property  to 
the  Governor  of  Georgia,  claiming  to  act  in  his  official  capacity, 
declared  void  upon  the  ground  "  that  the  governor  was  not 
authorized  to  bid  in  said  property  for  the  State,  and  the  State 
had  no  constitutional  power  to  make  the  purchase,"  could  not 
be   maintained.12     A  bill,  the  object  of  which  is  by  injunction, 

10  Cunningham  v.  Macon  &  Brunswick  See  Virginia  Coupon  Cases,  114  U.  S. 
R.   R.   Co.,   109    U.    S.    446,  454,  455;     269. 

See   also,   Governor   of  Georgia  v.  Ma-         n  Cunningham  v.  Macon  &  Brunswick 

drazo,  1  Pet.  124;   Hagood  v.  Southern,  R.  R.  Co.,  109  U.  S.  446.     See,  however, 

117  U.  S.  52.  the  dissenting  opinion  of  Field  and  Har- 

11  Cunningham  v.  Macon  &  Brims-  lan,JJ.  See  also  Hagood  v.  Southern,  117 
wick   R.   R.   Co.,   109   U.    S.    446,   456.  U.  S.  52. 


§  38.]      LIABILITY   OF   A   STATE    TO   A   SUIT   BY   ANOTHER   STATE.      77 

indirectly,  to  compel  the  specific  performance  of  a  contract  by 
a  State  by  forbidding  all  those  acts  and  doings  which  consti- 
tute breaches  of  the  contract,  is  a  suit  against  the  State.13 
Such  was  held  to  be  a  suit  to  enjoin  the  Attorney-General, 
auditor,  and  various  Commonwealth  attorneys  of  the  State  of 
Virginia  to  enjoin  them  from  bringing  suits  in  the  name  of  that 
State  and  in  its  courts  against  persons  who  had  tendered  in 
payment  of  taxes  tax-receivable  coupons  of  Virginia  bonds.14 
It  has  been  suggested  in  the  Virginia  circuit  that  there  is  no 
prohibition  in  the  Constitution  against  a  suit  against  a  State 
by  one  of  its  own  citizens  to  enforce  a  right  arising  under  the 
Constitution  or  statutes  of  the  United  States.15  It  has  been 
held  in  the  Louisiana  circuit  that  such  a  suit  cannot  be  main- 
tained.16 

§  38.  Liability  of  a  State  to  a  Suit  by  another  State.  —  The  Con- 
stitution provides  that  "the  judicial  power  shall  extend  ...  to 
controversies  between  two  or  more  States ;  .  .  .  and  between  a 
State,  or  the  Citizens  thereof  and  foreign  States,  citizens  or  sub- 
jects."1 The  Eleventh  Amendment  has  not  taken  away  the  lia- 
bility of  one  of  the  United  States  to  a  suit  by  another  such  State 
or  a  foreign  State.  Such  jurisdiction,  however,  is  confined  to 
controversies  concerning  rights  affecting  property  ;  not  to  those 
merely  affecting  political  rights.2  It  includes  controversies  con- 
cerning boundaries  between  different  States,  even  though  the 
complainant  claim  no  title  other  than  that  of  sovereignty  and 
jurisdiction  over  the  lands  in  question.3  For,  "  in  this  country, 
where  feudal  tenures  are  abolished,  in  cases  of  escheat  the  State 
takes  the  place  of  the  feudal  lord,  by  virtue  of  its  sovereignty,  as 
the  original  and  ultimate  proprietor  of  all  the  lands  within  its 
jurisdiction." 4  If,  however,  in  a  bill  which  prays  relief  against 
a  threatened  invasion  of  rights  purely  political  in  their  nature,  a 

13  In  re  Ayers,  123  U.  S.  443,  502  ;  per         §  38.   *  Art.  III.  §  2. 
Matthews,  J.  2  Cherokee  Nation  v.  Georgia,  5  Pet.  1 ; 

»  In  re  Ayers,  123  U.  S.  443.  Georgia  v.  Stanton,  6  Wall.  50 ;  Georgia 

15  Hughes,  J.,  in  Harvey  v.  Common-  v.  Grant,  6  Wall.  241. 

wealth  of  Virginia,  20  Fed.  K.  411,  and         3  Rhode  Island  v.  Massachusetts,    12 

note,  p.  417.     But  see  the  language  of  Pet.  657  ;  Missouri  v.  Iowa,  7  How.  660 ; 

the  minority  of   the  Supreme  Court  in  Florida  v.  Georgia,  17  How.  478 ;  Ala- 

the  Virginia   Coupon   Cases,   114   U.   S.  bama  v.  Georgia,  23  How.  505 ;  Virginia 

269,  337-338.  v.  West  Virginia,  11  Wall.  39. 

16  Hans  v.  Louisiana,  24  Fed.  P.  55 ;         «  Georgia  v.  Stanton,  6  Wall.  50,  73. 
per  Billings,  J. 


78        PLAINTIFFS   OE   DEFENDANTS   IN   A   SUIT   IN   EQUITY.      [CHAP.  II. 

threatened  injury  to  property  be  stated  "  only  by  way  of  showing 
one  of  the  grievances  resulting  from  the  threatened  destruction 
of  the  State,  and  in  aggravation  of  it,  not  as  a  specific  ground  of 
relief ; "  and  "  this  matter  of  property  is  neither  stated  as  an 
independent  ground,  nor  is  it  noticed  at  all  in  the  prayers  for 
relief;  "  the  bill  will  be  dismissed.5  A  suit  cannot  be  maintained 
when  brought  by  one  State  against  another  to  enforce  the  pay- 
ment by  the  latter  of  its  bonds  originally  held  by  citizens  of  the 
former  State,  and  assigned  by  them  to  it  solely  for  the  purpose  of 
collection.6  A  tribe  of  Indians  domiciled  within  the  borders  of 
the  United  States  does  not  constitute  a  foreign  State  within  the 
meaning  of  the  Constitution.7 

§  39.  Suits  against  infants.  —  An  infant  when  sued  should  be 
provided  by  the  court  with  a  guardian  ad  litem.1  For  an  omis- 
sion to  appoint  a  guardian  ad  litem,  a  decree  against  an  infant 
will  be  reversed  upon  appeal.2  An  application  for  the  ap- 
pointment of  a  guardian  ad  litem  for  an  infant  should  be  made 
by  petition,  which,  if  the  appointment  of  a  particular  person  is 
desired,  should  state  his  name  and  his  consent  to  act  as  such.3 
The  court  will  usually  appoint  the  infant's  general  guardian  or 
"  the  nearest  relative  not  concerned,  in  point  of  interest,  in  the 
matter  in  question  ;  "  4  but  the  choice  of  the  guardian  rests  in  the 
sound  discretion  of  the  court,  and  only  in  an  extraordinary  case 
would  a  decree  be  reversed  for  an  error  in  this  respect.5  The 
interests  of  an  infant  are  guarded  jealously  by  the  court,  which 
will  not  hold  him  bound  by  any  admission  made  by  him  or  in  his 
behalf,  whether  in  the  pleadings,6  or  otherwise.7  The  guardian 
ad  litem  is  responsible  for  the  propriety  of  the  defense.8  He  must 
pay  costs  for  scandal.9  And  he  may  be  removed  by  the  court  at 
any  time.10    This  may  be  done  if  he  is  unable  or  unwilling  to  pay 

5  Georgia  v.  Stanton,  6  Wall.  50,  77.  5  Bank  of  the  United  States  v.  Kitchie, 

6  New  Hampshire  v.  Louisiana,   108    8  Pet.  128,  144. 

XJ,  s.  76.  6  Bank  of  the  United  States  v.  Ritchie, 

7  Cherokee  Nations  Georgia,  5 Pet.  1.     8  Pet.  128,  144,  145;  Walton  v.  Coulson, 
§  39.   1  Rule  87  ;  Bank  of  the  United     1  McLean,  125;  s.  c.  Coulson  v.  Walton, 

States  v.  Ritchie,  8  Pet.  128,  144.  9  Pet.   62,   84  ;  Hawkins   v.  Luscombe, 

2  O'Hara  v.  MacConnell,  93  U.  S.  2  Swanst.  375,  390;  Savage  v.  Carroll,  1 
150.  Ball  &  B.  553. 

3  Rhinelander  v.  Sanford,  3  Day  (2d         7  Legard  v.  Sheffield,  2  Atk.  377. 
Circuit,  Conn.),  279.  8  Knickerbacker    v.     De     Freest,    2 

«  Bank  of  the  United  States  v.  Ritchie,     Paige  (N.  Y.),  304. 
8  Pet.  128,  144;  Story's   Eq.  PI.  §70;         9  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  204. 
Calvert  on  Parties,  Book  III.  ch.  xxxi.  10  Russell  v.  Sharpe,  1  Jac.  &  W.  482. 


§  40.]  SUITS   AGAINST   IDIOTS,   LUNATICS,   ETC.  79 

the  expenses  of  the  defense.11  If  no  person  of  substance  is  wil- 
ling to  serve  for  the  infants,  the  court  "  might  suspend  further 
proceedings  until  it  could  send  a  next  friend  or  guardian  ad  litem 
to  the  State  courts  having  jurisdiction  of  their  person  and  prop- 
erty, to  secure  such  guardianship  as  would  protect  them." 12 
Infants  may  defend  in  forma  pauperis ;  but,  except  in  very  ex- 
traordinary circumstances,  their  expenses  will  not  be  advanced 
out  of  a  fund  in  the  hands  of  a  receiver.13  A  guardian  ad  litem 
may  recoup  his  expenses  from  the  infant's  property.14  Accord- 
ing to  the  English  practice,  an  appearance  could  be  entered  for 
an  infant  before  a  guardian  ad  litem  had  been  appointed.15 

§  40.  Suits  against  Idiots,  Lunatics,  and  Persons  of  Weak  Mind.  — 
Idiots  and  lunatics  defend  by  guardians  ad  litem,  appointed  for 
them  by  the  court.1  A  committee  will  usually  be  appointed 
guardian  ad  litem  of  the  person  in  his  charge  ; 2  unless  his  in- 
terest be  opposed  to  that  of  the  idiot  or  lunatic,3  or  perhaps  if  he 
refuse  to  answer  or  defend.4  The  guardian  ad  litem  is  usually 
joined  with  the  idiot  or  lunatic  as  a  co-defendant.5  It  was  held 
by  Chancellor  Kent,  that  in  New  York  the  committee  appointed 
in  accordance  with  statute,  and  not  the  idiot  or  lunatic,  is  the 
proper  party  to  the  bill ; 6  but  the  rule  in  the  Federal  courts 
seems  to  be  otherwise.7  "  A  person  reduced  by  age  or  infirmity 
to  a  second  infancy  may  defend  by  guardian."8  It  is  said  that 
the  answer  of  a  superannuated  person,  put  in  by  guardian,  may  be 
read  against  him  as  an  answer  of  one  of  full  age  put  in  in  per- 
son ;  and  that  the  difference  in  this  respect  between  such  answer 
and  that  of  an  infant  put  in  by  guardian  is,  because  an  infant  im- 
proves and  mends,  and  therefore  is  to  have  a  day  to  show  cause 
after  he  comes  of  age ;  but  the  other  grows  worse,  and  is  to  have 
no  day.9 

"  Ferguson  v.  Dent,  15  Fed.  K.  771,         8  Snell    v.    Hyat,    1    Dickens,    287; 

772.  Story's  Eq.  PI.  §  70. 

12  Ferguson  v.  Dent,  15  Fed.  R.  771,         4  Lloyd  v. ,  2  Dickens,  460. 

772.  6  Harrison  v.  Rowan,  4  Wash.  C.  C. 

18  Ferguson  v.  Dent,  15  Fed.  R.  771.  202. 

24  Ferguson  v.  Dent,  15  Fed.  R.  771,         6  Brasher's   Executors   v.  Van    Cort- 

772.  landt,  2  Johns.  Ch.  (N.  Y.)  242. 

15  Braithwaite's  Pr.  322.  7  Harrison  v.  Rowan,  4  Wash.  C.  C. 

§  40.   1  Rule  87  ;  Harrison  v.  Rowan,  202,  207. 
4  Wash.  C.  C.  202,  207.  8  Markle  v.  Markle,  4  J.  Ch.  168. 

2  Story's  Eq.  PI.  §  70;  Westcomb  v.         9  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  224, 

Westcomb,  1  Dickens,  233 ;  Harrison  v.  225 ;  citing  Leving  v.  Caverly,  Prec.  Ch. 

Rowan,  4  Wash.  C.  C.  202,  207.  229. 


SO        PLAINTIFFS   OR   DEFENDANTS   IN    A   SUIT   IN   EQUITY.       [CHAP.  II. 

§  41.  Suits  against  Married  Women.  —  In  suits  against  a  married 
woman  by  a  third  person,  her  husband,  if  not  civilly  dead  or  per- 
manently absent  from  the  State,  should  be  joined  with  her  as  a 
co-defendant ; *  except  perhaps  in  States  where  she  has  the  same 
rights  and  liabilities  as  a  spinster,2  or  when  she  is  sued  in  a  rep- 
resentative capacity.3  She,  however,  may  answer  separately  from 
her  husband.4 

§  41.  !  Story's  Eq.  PI.  §  71 ;  Calvert  Fed.  R.  228 ;  United  States  v.  Pratt  Coal 

on  Parties,  Book  III.  ch.  xxx. ;  Hulme  v.  &  Coke  Co.,  18  Fed.  R.  708  ;    O'Hara  v. 

Tenant,  1  Brown,  Ch.  C.  16;  Taylor  v.  MacConnell,  93  U.  S.  150. 

Holmes,  14  Fed.  R.  498,  514.  3  Moore  v.  Meynell,  2  Vern.  614,  note. 

2  Lorillard  v.  Standard  Oil  Co.,  2  Fed.  *  Duke   of  Chandos   v.  Talbot,  2  P. 

R.  902.    But  see  Taylor  v.  Holmes,  14  Wms.  372. 
Fed.  R.  499,  514;  Douglas  v.  Butler,  6 


§  42.]  GENEKAL   KULE   AS   TO   PARTIES.  81 


CHAPTER  III. 

PARTIES. 

§  42.  General  Rule  as  to  Parties.  —  In  ordinary  cases,  all  per- 
sons should  be  made  parties  to  a  suit  in  equity,  who  are  di- 
rectly interested  in  obtaining  or  resisting  the  relief  prayed  for 
in  the  bill  or  granted  in  the  decree.1  If  interested  in  obtaining 
the  relief  prayed  for,  they  should  join  as  plaintiffs  ;  unless  some 
refuse  to  appear  in  that  capacity,  when  the  rest  should  make  them 
defendants.2  This  rule  has  been  also  stated  by  the  expressions 
that  "  all  persons  interested  in  the  subject  of  the  suit  should  be 
before  the  court";3  and  that  "all  persons  who  have  in  the  object 
or  objects  of  the  suit  an  interest  or  interests  apparent  upon  the 
record,  are  necessary  parties."  4 

"  In  determining  who  are  proper  parties  to  a  suit,  courts  of 
equity  are  guided  by  two  leading  principles.  One  of  them  is  a 
principle  admitted  in  all  courts  of  justice 'in  this  country,  upon 
questions  affecting  liberty,  or  life,  or  property ;  namely,  that  no 
proceedings  shall  take  place  with  respect  to  the  rights  of  any  one, 
except  in  his  presence.  Thus  a  decree  of  a  court  of  equity  binds 
no  one  who  is  not  to  be  regarded,  according  to  the  rules  of  the 
court,  either  as  a  party,  or  else  as  one  who  claims  under  a  party, 
to  the  suit.  The  second  is  a  principle  which  in  this  country  is 
peculiar  to  courts  of  equity ;  namely,  that  when  a  decision  is 
made,  it  shall  provide  for  all  the  rights  which  different  persons 
have  in  the  matters  decided.  For  a  court  of  equity  in  all  cases 
delights  to  do  complete  justice,  and  not  by  halves ; 5  to  put  an 
end  to  litigation,  and  to  give  decrees  of  such  a  nature  that  the 
performance  of  them  may  be  perfectly  safe  to  all  who  obey  them: 
interest  reipublicae  ut  sit  finis  litium.     In  this  respect,  there  is  a 

§  42.   1  Calvert  on   Parties,   Book  I.         8  Sir  William   Grant    in    Wilkins  v. 

ch.  i.,  and  cases  there  cited.  Fry,  1  Mer.  244,  2G2. 

2  Harding  v.  Handy,  11  Wheat.  103;  4  Calvert  on  Parties   (2d  ed.),  p.  13, 

Wisner  v.   Barnet,   4   Wash.  C.  C.  631,  and  cases  there  cited. 
042 ;  Fallowes  v.  Williamson,  11  Ves.  313  ;         6  Knight  v.  Knight,  3  P.  Wms.  333. 
Calvert  on  Parties,  Book  I.  ch.  viii. 


82  PARTIES.  [CHAP.  III. 

manifest  distinction  between  the  practice  of  a  court  of  law  and 
that  of  a  court  of  equity.  A  court  of  law  decides  some  one  in- 
dividual question  which  is  brought  before  it ;  a  court  of  equity 
not  merely  makes  a  decision  to  that  extent,  but  also  arranges  all 
the  rights  which  the  decision  immediately  affects."  6  Thus  when 
a  person  who  is  charged  with  the  payment  of  a  sum  of  money  is 
surety  to  another,  the  principal  must  be  joined  as  defendant  to 
the  bill ;  as  in  the  case  of  a  suit  against  an  heir  for  the  perform- 
ance of  a  covenant  by  his  ancestor  which  binds  him  as  well  as 
the  ancestor's  personal  estate,  when  the  personal  representative 
must  also  be  joined.  For  "the  court  of  equity  in  all  cases  de- 
lights to  do  complete  justice,  and  not  by  halves  :  as,  first,  to 
decree  the  heir  to  perform  this  covenant,  and  then  to  put  the  heir 
upon  another  bill  against  the  executor  to  reimburse  himself  out 
of  the  personal  assets,  which,  for  aught  appears  to  the  contrary, 
may  be  more  than  sufficient  to  answer  the  covenant ;  and  when 
the  executor  and  heir  are  both  brought  before  the  court,  complete 
justice  may  be  done  by  decreeing  the  executor  to  perform  this 
covenant  as  far  as  the  personal  assets  will  extend,  the  rest  to  be 
made  good  by  the  heir  out  of  the  real  assets.  And  here  appears 
no  difficulty  or  inconvenience  in  bringing  the  executor  before  the 
court.  On  the  contrary,  it  would  prevent  a  multiplicity  of  suits, 
which  a  court  of  equity  ought  to  do."7 

§  43.  Parties  with  no  Interest  in  the  Subject-Matter  of  the  Suit. 
—  Although  as  a  general  rule  no  person  can  be  made  a  party 
against  whom  if  brought  to  a  hearing  the  plaintiff  can  have  no 
decree,1  yet  the  English  practice  allowed  strangers  in  certain 
cases  to  be  made  parties  for  the  sake  of  discovery,  and  even  in 
order  to  mulct  them  with  costs.  In  a  suit  against  a  corpora- 
tion, its  officers,  book-keeper,  or  members  might  be  made  parties 
for  the  sake  of  discovery  concerning  matters  which  had  come  to 
their  knowledge  while  transacting  the  business  of  the  corpora- 
tion ; 2  but  not,  it  seems,  to  obtain  discovery  of  such  as  they 
knew  only  through  their  participation  in  its  formation.3     Of  the 

6  Calvert  on  Parties  (2d  ed.),  pp.  2,  3.     Anon.,  1  Vern.  117  ;  Fenton  v.  Hughes,  7 

7  Lord  Chancellor  Talbot  in  Knight  Ves.  289;  Glyn  v.  Soares,  1  Y.  &  C.  644; 
v.  Knight,  3  P.  Wins.  331,  334.  Many  v.   Beekman   Iron    Co.,   9  Paige, 

§  43.  1  Wych  17.  Meal,  3  P.  Wms.  310,  (N.  Y.),  189 ,  Calvert  on  Parties  (2d  ed), 

311,  note  ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  pp.  92-94. 
342.  3  McComb  v.   Chicago,   St.  Louis,   & 

2  Wych    v.   Meal,  3    P.   Wins.   310 ;  New  Orleans  R.  R.  Co.,  7  Fed.  R.  426. 


§  44]        PERSONS  NOT  NECESSARY  PARTIES  TO  A  SUIT  IN  EQUITY.       83 

rule,  Lord  Eldon  said :  "  The  principle  upon  which  the  rule  has 
been  adopted  is  very  singular ;  it  originated  with  Lord  Talbot,4 
who  reasoned  thus  upon  it,  that  you  cannot  have  a  satisfactory 
answer  from  a  corporation,  therefore  you  make  the  secretary  a 
party,  and  get  from  him  the  discovery  you  cannot  be  sure  of 
having  from  them  ;  and  it  is  added,  that  the  answer  of  the  secre- 
tary may  enable  you  to  get  better  information."5  "The  first 
of  these  principles,"  continues  Lord  Eldon,  "  is  extremely  ques- 
tionable, if  it  were  now  to  be  considered  for  the  first  time  ;  and  as 
to  the  latter,  it  is  very  singular  to  make  a  person  a  defendant  in 
order  to  enable  yourself  to  deal  better,  and  with  more  success, 
with  those  whom  you  have  a  right  to  put  upon  the  record ;  but 
this  practice  has  so  universally  prevailed  without  objection  that 
it  must  be  considered  established." 6  Agents  to  sell,  auctioneers, 
arbitrators,  and  attorneys  could  formerly  be  made  defendants 
for  a  similar  purpose  in  suits  against  their  principals  concerning 
transactions  with  which  they  were  connected.7  And  in  a  few 
cases  of  fraud  it  has  been  held  that  persons  implicated  in  the 
fraud  might  be  made  parties  merely  to  make  them  liable  for 
costs.8 

§  44.  Persons  -who  on  account  of  their  Interest  need  not  be  made 
Parties  to  a  Suit  in  Equity.  —  No  persons  should  be  joined  as  par- 
ties to  a  suit  in  equity  either  as  co-plaintiffs  or  co-defendants, 
who  are  not  directly  interested  in  obtaining  or  resisting  the  relief 
prayed  for  in  the  bill,1  or  who  claim  the  property  in  question 
under  inconsistent  titles.2  Thus,  prior  incumbrancers  should  not 
be  made  parties  to  a  bill  for  the  foreclosure  of  a  mortgage,3  un- 
less it  prays  for  a  receiver,4  or  seeks  to  obtain  a  sale  of  the  entire 
mortgaged  property  free  from  all  liens,5  or  unless  "  there  is  sub- 
stantial doubt  respecting  the  amount  of  debts  due  prior  lien  cred- 
itors," in  which  case  "  there  is  obvious  propriety  in  making  them 

*  In  Wych  v.  Meal,  3  P.  Wms.  310.  2  Calvert  on  Parties  (2ded.),  105  ;  Mar- 

6  Fenton  v.  Hughes,  7  Ves.  287.  quis  Cholmondeley  v.  Lord  Clinton,  2  Jac. 

6  Fenton  v.  Hughes,  7  Ves.  288,  289.  &  W.  138 ;  Saumarez  v.  Saumarez,  4  M. 

»  Fenton  v.  Hughes,  7  Ves.  288,  289 ;  &  C.   331 ;   Dial   v.   Reynolds,  9G  U.  S. 

Dummer  v.  Corporation  of  Chippenham,  340. 
14  Ves.  252.  8  Hagan  v.  Walker,  14  How.  29,  37  ; 

8  Taylour  v.   Rochford,  2  Ves.   Sen.  Jerome  v.  McCarter,  94  U.  S.  734. 
281  ;   Smith  v.  Green,  37  Fed.  R.   424 ;         *  Miltenberger  v.  Logansport  Railway 

Calvert  on  Parties  (2d  ed.),  p.  96,  and  Co.,  106  U.  S.  286,  306. 
cases  cited.  6  Hagan  v.  Walker,  14  How.  29 ;  Je- 

§  44.  2  Calvert  on  Parties  (2d  ed.),  6 ;  rome  v.  McCarter,  94  U.  S.  734,  735. 
Mare  v.  Malachy,  1  M.  &  C.  559. 


84  PAETIES.  [CHAP.  III. 

parties,  that  the  amount  of  the  charge  remaining  on  the  land  after 
the  sale  may  be  determined,  and  that  purchasers  at  the  sale  may 
be  advised  of  what  they  are  purchasing ; "  6  or  unless  there  are 
other  peculiar  circumstances  making  it  necessary.  So,  in  suits 
for  specific  performance,  it  is  a  general  rule  that  none  but  parties 
to  the  contract  or  their  representatives  are  necessary  parties,7 
unless  there  are  other  persons  with  such  an  interest  in  the  con- 
tract or  the  property  agreed  to  be  sold  that  their  concurrence  is 
necessary  to  the  completion  of  the  title,  or  their  rights  would 
be  prejudiced  were  a  decree  made  in  their  absence.8  Nor  need 
the  assignor  of  the  whole  interest  in  a  thing  in  action  be  made  a 
party  to  a  suit  by  the  assignee,9  except  in  the  case  of  a  suit  by 
the  equitable  assignee  of  a  patent,10  or  copyright,11  or  of  an  as- 
signment still  executory,12  when  the  assignor  must  be  joined  as 
either  plaintiff  or  defendant.  Nor  need  a  mortgagor  who  has 
sold  his  equity  of  redemption  be  made  a  party  to  a  foreclosure 
suit,13  unless  relief  is  asked  against  him.14  And,  as  has  been  said 
before,  no  persons  should  be  joined  as  plaintiffs  15  or  defendants,16 
who  claim  the  property  in  question  under  inconsistent  titles. 
For  example,  a  mortgagee  cannot  maintain  a  bill  against  the 
mortgagor  for  a  foreclosure,  which,  at  the  same  time  seeks  to 
enjoin  a  claimant  adverse  to  both  mortgagor  and  mortgagee  from 
asserting  his  title  to  the  mortgaged  property.17  An  interest  in 
the  question  of  law  involved  is  not  sufficient  to  make  a  person  a 
necessary  or  even  a  proper  party,18  except  when  a  bill  of  peace  is 
filed.     The  equity  rules,  following  the  English  orders  in  chan- 

6  Mr.    Justice    Strong    in  Jerome   v.  Chappell  v.  Purday,  4  Y.  &  C.  485 ;  Cal- 

McCarter,  94  U.  S.  734,  at   pages   735,  vert  on  Parties  (2d  ed.),  315. 

736.  12  Land  Co.  of  New  Mexico,  v.  Elkins, 

»  Tasker  v.  Small,  3  M.  &  C.  63,  68 ;  20  Fed.  R.  545. 

Calvert  on   Parties    (2d  ed.),  Book   III.  13  Kanawha   Coal  Co.  v.  Kanawha  & 

ch.  xvii.  Ohio  Canal  Co.,  7  Blatchf.  C.  C.  391,  416. 

8  Jones  v.  Lewis,  1  Cox  Eq.  199 ;  Evans  But  see  Matcalm  >:.  Smith,  6  McLean,  416. 
v.  Jackson,  8  Sim.  217 ;  Calvert  on  Par-  «  Ayres  v.  Wiswall,  112  U.  S.  187. 
ties,  Book  III.  ch.  xvii.  15  Marquis  Cholmondeley  v.  Lord  Clin- 

9  Harris  v.  Johnston,  3  Cranch,  311;  ton,  2  Jac.  &  W.  1,  at  page  135;  Sau- 
Boon  v.  Chiles.  8  Pet.  532  ;  Robertson  v.  marez  v.  Saumarez,  4  M.  &  C.  331,  336. 
Carson,  19  Wall.  94;  s.  c.  Chase's  Dec.  See  Parsons  v.  Lyman,  4  Blatchf.  C.  C. 
475 ;  Batesville  Institute  v.  Kauffman,  18  432. 

Wall.  151 ;  Fulham  v.  McCarthy,  1  H.  L.  «  j);ai  v.  Reynolds,  96  U.  S.  340. 

C.  703.  »  Dial  v.  Reynolds,  96  U.  S.  340.     But 

10  Stimpson  v.  Rogers,  4  Blatchf.  333 ;  see  Hefner  v.  Northwestern  Life  Ins.  Co., 

North  v.  Kershaw,  4  Blatchf.  70;    Pat-  123  U.  S.  747. 

terson  v.  Stapler,  7  Fed.  R.  210.  18  Vallette  v.  "Whitewater  Valley  Canal 

»  Colburn  v.  Duncombe,  9  Sim.  151 ;  Co.,  4  McLean,  192. 


§  45.]      WHEEE   THE   LAW   HAS   FURNISHED   A  REPRESENTATIVE.        85 

eery,  also  provide  that  "  in  all  cases  in  which  the  plaintiff  has  a 
joint  and  several  demand  against  several  persons,  either  as  prin- 
cipals or  sureties,  it  shall  not  be  necessary  to  bring  before  the 
court  as  parties  to  a  suit  concerning  such  demand,  all  the  per- 
sons liable  thereto  ;  but  the  plaintiff  may  proceed  against  one  or 
more  of  the  persons  severally  liable."  19  This  rule,  however,  only 
applies  when  the  demand  is  both  joint  and  several,  not  when  it  is 
merely  joint ; 20  and  when  one  of  two  or  more  jointly  and  sever- 
ally indebted  is  the  principal  debtor  to  whom  the  others  are 
sureties,  he  must,  it  seems,  always  be  joined  in  a  bill  filed  by  the 
creditor  to  enforce  a  security  against  either  of  the  latter.21  Con- 
cerning the  chancery  order  from  which  Rule  fifty-one  was  copied, 
Vice-Chancellor  Shadwell  said,  that  it  "  applied  to  cases  where 
several  persons  were  liable  in  different  characters,  that  is,  some  as 
principals  and  the  rest  as  sureties ;  and  then  it  was  sufficient  to 
make  one  individual  of  each  class  a  party ;  but  where  there  was 
only  one  principal  and  one  surety,  both  of  them  must  be  made 
parties."22 

§  45.  Cases  where  the  Law  has  furnished  a  Representative.  — 
On  account  of  the  inconvenience  which  would  be  caused  if  the 
general  rule  were  enforced  in  all  cases,  there  are  several  classes 
of  exceptions  to  it.1  The  first  of  these  exists  when  the  law  has 
furnished  a  representative  of  the  interest  in  question.  In  such  a 
case,  those  whom  he  represents  are  not  usually  necessary  parties 
to  the  suit.2  Thus,  executors  and  administrators  are  deemed 
sufficiently  to  represent  all  legatees,  creditors,  and  next  of  kin 
in  suits  brought  by  or  against  them  in  their  representative  capa- 
city,3 except  when  they  are  made  defendants  to  a  suit  by  a  resid- 
uary legatee  for  his  share  of  the  estate,4  or  are  sued  for  collusion 
with  a  legatee  who  should  then  be  made  a  party,5  or  probably 

19  Rule  51,  copied  from  the  32d  Order         8  Brown  v.  Dowthwaite,  1  Madd.  448  ; 

in  Chancery  of  August,  1841.  Potter  v.  Gardner,  12  Wheat.  499  ;  Bur- 

2)  Piersony.  Robinson,  3  Swanst.  139  n  .  ton  v.  Smith,  4  Wash.  C.  C.  522;  Dan- 

21  Robertson  v.  Carson,  19  Wall.  94  ;  bridge  v.  Washington's  Executors,  2  Pet. 
Wilson  v.  City  Bank,  3  Sumner,  423;  370,  377;  Wainwright  v.  Waterman,  1 
Allan  v.  Houlden,  6  Beav.  148;   Pinkus  Ves.  Jr.  313  ;  Anon.,  12  Mod.  622. 

v.  Peters,  6  Beav.  253.  *  Atwood    v.    Hawkins,    Rep.    temp. 

22  Lloyd  v.  Smith,  13  Sim.  457,  at  Finch,  113;  Faithful  v.  Hunt,  3  Anst. 
pages  458,  459.  751  ;    Calvert  on  Parties   (2d  ed.),  206, 

§  45.  i  Wallworth  v.  Holt,  4  M.  &  C.  208. 
619  ;  Powell  v.  Wright,  7  Beav.  449.  6  Attorney-General  v.   Wynne,    Mos. 

2  Calvert  on  Parties  (2d  ed.),  22.  See  126. 
Hopkirk  v.  Page,  2  Brock.  20,  42. 


86  PARTIES.  [CHAP.  III. 

when  an  executor  or  administrator  is  charged  with  a  breach  of 
trust.  So  a  bankrupt  or  insolvent  debtor6  and  his  creditors7  are 
not  usually  necessary  parties  to  a  suit  brought  by  or  against  his 
assignee.  And  by  analogy  to  this,  it  has  been  held  improper  for 
a  creditor  of  an  estate  to  join  with  its  receiver  in  a  suit  concern- 
ing it.8  Nor  need  one  or  more  surviving  parties  in  suits  by  or 
against  strangers  affecting  the  partnership  property  have  joined 
with  them  the  personal  representatives  of  their  deceased  asso- 
ciate.9 So,  the  English  rule  was  that  "a  court  of  equity  in  many 
cases  considers  the  tenant  in  tail  as  having  the  whole  estate 
vested  in  him  at  least  for  the  purposes  of  suit ;  and  for  these 
purposes  does  not  look  beyond  the  estate  tail  in  a  suit  aiming  by 
the  decree  to  bind  the  right  to  the  land."  10  "  Those  in  remain- 
der were  considered  as  cyphers."  u  "  It  appears  that  this  rule 
was  originally  founded  upon  analogy  to  common  law.  As  a 
tenant  in  tail  might  bar  subsequent  remainder-men,  in  fact, 
might  at  any  moment  make  himself  master  of  the  entire  estate, 
it  was  considered  by  the  court  that  he  might  be  assumed  to  offer 
a  satisfactory  defence  for  all  those  subsequent  interests.  The 
court  has,  however,  gone  one  step  farther,  and  has  treated  in- 
fants as  sufficient  representatives  of  the  inheritance,  although 
they  are  unable,  by  reason  of  infancy,  to  bar  remainder-men.  In 
truth  the  court  has  gone  to  the  full  extent  which  is  requisite  for 
convenience  in  practice."12  It  has  been  held  that  a  tenant  for  life 
and  the  contingent  remainder-man  in  fee  may  represent  the  in- 
heritance in  a  bill  for  specific  performance,  if  the  children  of  the 
remainder-man  will  inherit  if  he  does  not.13 

In  most  cases  respecting  trust  property,  it  was  said  by  Lord 
Eldon  that  the  beneficiaries  of  the  trust  were  necessary  parties.14 
The  expression  naturally  suggests  the  inquiry,  in  what  cases  they 
are  not  to  be  made  parties.  There  are  some  cases  in  which  the 
existence  or  enjoyment  of  the  property  is  affected  by  the  prayer  of 
the  suit.  There  are  others  in  which  the  existence  of  the  prop- 
erty is  not  affected,  and  the  only  object  is  to  transfer  it  into  the 

6  De  Wolf  v.  Johnson,  10  Wheat.  367,  w  Lord  Eldon  in  Lloyd  v.  Johnes,  9 
flt   p.    384 ;    Van   Reimsdyk  v.   Kane,    1     Ves.  65. 

Gall.  371 ;  Calvert  on  Parties   (2d  ed.),        u  Lord  Camden  in  Reynoldson  v.  Per- 

24.  kins,  Ambler,  564. 

7  Spragg  v.  Binkes,  5  Ves.  587.  12  Calvert  on  Parties  (2d  ed.),  56. 

8  Doggett  v.  Railroad  Co.,  99  U.  S.  72.        13  Sohier  v.  Williams,  1  Curt.  479. 

9  Pagan  v.  Sparks,  2  Wash.  C.  C.  325.        14  Adams  v.  St.  Leger,  1  B.  &  B.  182. 


§  45.]      WHERE    THE   LAW   HAS   FURNISHED   A   REPRESENTATIVE.        87 

hands  of  the  trustees.15  In  the  latter  cases  the  beneficiaries  of  the 
trust  need  not,16  although  it  seems  they  may  be  made  parties.17 
In  the  former,  when  not  too  numerous,  their  presence  was  always 
required 18  before  the  equity  rules.  The  rules,  however,  fol- 
lowing an  English  chancery  order,19  provide  that :  "  In  all  suits 
concerning  real  estate  which  is  vested  in  trustees  by  devise,  and 
such  trustees  are  competent  to  sell  and  give  discharges  for  the 
proceeds  of  the  sale,  and  for  the  rents  and  profits  of  the  estate, 
such  trustees  shall  represent  the  persons  beneficially  interested 
in  the  estate,  or  the  proceeds,  or  the  rents  and  profits,  in  the 
same  manner  and  to  the  same  extent  as  the  executors  or  admin- 
istrators in  suits  concerning  personal  estate  represent  the  per- 
sons beneficially  interested  in  such  personal  estate ;  and  in  such 
cases  it  shall  not  be  necessary  to  make  the  persons  beneficially 
interested  in  such  real  estate,  or  rents  and  profits,  parties  to  the 
suit.  But  the  court  may,  upon  consideration  of  the  matter 
on  the  hearing,  if  it  shall  so  think  fit,  order  such  persons  to  be 
made  parties."20  "It  seems  doubtful,  however,"  says  Daniell  of 
the  English  order,  "  whether  this  order  will  apply  to  cases  where 
a  mortgagee  seeks  to  foreclose  the  equity  of  redemption  of  estates 
which  are  subject  to  such  trusts." 21  Trustees  under  a  railroad 
mortgage,22  or  of  any  other  trust-deed  of  a  similar  nature  secur- 
ing the  rights  in  real  property  of  a  large  number  of  benefi- 
ciaries,23 are  held,  in  all  proceedings  affecting  the  property  which 
they  thus  hold,  adequately  to  represent  the  latter,  who  will  be 
bound  by  notice  given,  or  a  decree  entered  against  them,  although 
the  court  may  in  its  discretion  make  any  of  such  beneficiaries  a 
party  to  the  suit  at  his  application.24  It  has  been  held,  how- 
ever, that  to  a  bill  against  the  heirs  of  a  trustee  to  quiet  the  title 
to  property  conveyed  by  the  trustee  to  the  complainant,  the 
beneficiary  of  the  trust  need  not  be  joined  as  a  party.25     It  has 

15  Calvert  on  Parties  (2d  ed\),  277.  21  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  304. 

16  Franco  v.  Franco,  3  Ves.  76 ;  Carey     See  also  Wilton  v.  Jones,  2  Y.  &  C.  244 ; 
v.  Brown,  92  U.  S.  171 ;  Calvert  on  Par-    Cross  v.  Be  Valle,  1  Wall.  1. 

ties  (2d  ed.),  277,  278.  *  Shaw  v.  Railroad  Co.,  100  U.  S.  605, 

17  Harrison  v.  Rowan,  4  Wash.  C.  C.     611. 

202.  23  Van  Vechten  v.  Terry,  2  Johns.  Ch. 

i8  Whistler  v.  Webb,  Bunb.  63 ;  Greene  (N.  Y.)  197  ;  Kerrison  v.  Stewart,  93  U.  S. 

v.  Sisson,  2   Curt.  171 ;    Oliver  v.   Piatt,  155. 

3    How.    333;    s.    c.    2    McLean,    208;  24  Williams  v.  Morgan,  111  U   S.  684. 

Cross  v.  De Valle,  1  Wall.  5.  See  Thomas  v.  Brownville,  F.  K.  &  P. 

19  30th  Order  of  August,  1841.  R.  R.  Co.,  109  U.  S.  522. 

20  Rule  49.  26  Gridley  v.  Wynant,  23  How.  500. 


88  PAETIES.  [CHAP.  III. 

been  held,  that  a  corporation  is  so  far  a  representative  of  its 
stockholders  that  none  of  them  need  be  joined  in  a  suit  for  an 
accounting,  under  a  lease  which  provides  for  the  payment  of 
dividends  directly  to  its  stockholders.26  It  has  been  held  that  a 
State  statute  authorizing  one  or  more  officers  of  an  unincorporated 
association  to  represent  the  others  in  the  courts,  when  suing  or 
being  sued  about  a  matter  concerning  their  common  interest, 
will  be  followed  by  a  Federal  court  of  equitj',  and  the  members 
conclusively  presumed  to  have  the  same  citizenship  as  such 
officers.27 

§  46.  Suits  by  a  Complainant  on  behalf  of  himself  and  others  simi- 
larly situated.  —  When  a  number  of  persons  have  a  common  in- 
terest in  a  thing  which  is  the  subject  of  litigation  ;  and,  in  some 
instances,  when  a  number  of  persons  have  a  common  interest  in 
a  question  which  is  before  the  court  for  decision,  one  or  more 
may  sue  or  be  sued  in  behalf  of  the  rest.  Judge  Story  divides 
the  first  of  these  divisions  into  two  :  "  (1)  When  the  question  is 
one  of  a  common  and  general  interest,  and  one  or  more  sue  or 
defend  for  the  benefit  of  the  whole  "  ;  and  "  (2)  when  the  parties 
form  a  voluntary  association  for  public  or  private  purposes,  and 
those  who  sue  or  defend  may  fairly  be  presumed  to  represent  the 
rights  and  interests  of  the  whole."  1  But  there  seems  to  be  no 
reason  for  treating  these  two  classes  separately.  When  one  or 
more  thus  file  a  bill  on  behalf  of  themselves  and  others  similarly 
interested,  they  must  state  in  the  title  of  their  bill  that  they  so 
sue,  and  show  that  the  others  are  numerous  or  unknown.2  Any 
of  the  others  of  the  class  have  the  right  to  join  with  them  in  the 
suit  at  any  time  upon  payment  of  his  share  of  the  costs3  and 
counsel  fees4  which  have  been  then  paid  or  incurred,  provided 
they  do  not  seek  to  act  in  hostility  to  the  original  complainants,5 
in  which  case  the  court  may  in  its  discretion  allow  them  to  in- 
tervene.6    If  their  joinder  as  plaintiffs  would  oust  the  court  of 

26  Pacific  R.  R.  of  Mo.  v.  Atlantic  &  94  U.  S.  248 ;  Hallett  v.  Hallett,  2  Paige 

P.  R.  R.  Co.,  20  Fed.  R.  277.  (N.  Y.),   18  ;  Leigh  v.  Thomas,   2  Ves. 

"  Fargo  v.  Louisville,  N.  A.  &  C.  Ry.  Sen.  313  ;  Ransom  v.  Davis,  18  How.  295 ; 

Co.,  6  Fed.  R.  787 ;  Whitman  v.  Hubbell,  Story's  Eq.  PI.  §  99. 

30  Fed.  R.  81  ;  Liverpool  Ins.  Co.  v.  Mas-  *  Central  Railroad  v.  Pettus,  113  U.  S. 

sachusetts,  10  Wall.  556;  and  supra  §  19.  116;  Trustees  v.  Greenough,  105  U.  S. 

But  see  Chapman  v.  Barney,  129  U.  S.  677.  527. 

§  46.   l  Story's  Eq.  PI.  §  97.  5  Forbes  v.  Memphis,  El  Paso,  &  Pacific 

2  Hoe  v.  Wilson,  9  Wall.  501.  R.  R.  Co.,  2  Woods,  323. 

8  Ogilvie  v.  Knox  Ins.  Co.,  2  Black.  6  Galveston  Railroad  v.  Cowdrey,  11 

539 ;  s.  c.  22  How.  380 ;  Ex  parte  Jordan,  Wall.  459,  478. 


§  47.]      ILLUSTRATIONS    OF    BILLS   FILED   BY   REPRESENTATIVES.         89 

jurisdiction  they  may  be  brought  in  as  defendants.7  Such  a  bill 
may  be  filed  even  when  a  majority  of  those  interested  object  to 
the  suit.8  For  "where  a  matter  is  necessarily  injurious  to  the 
common  right,  the  majority  of  the  persons  interested  can  neither 
excuse  the  wrong  nor  deprive  all  other  parties  of  their  remedy 
by  suit."  9  To  such  a  bill,  it  is  not  necessary  to  make  defendants 
all  who  object  to  its  being  filed,  provided  that  enough  are 
brought  before  the  court  to  sufficiently  represent  their  interest.10 
It  was  originally  held,  that  no  one  could  sue  on  behalf  of  others, 
who  claimed  for  himself  an  interest  in  the  matter  in  controversy 
distinct  from  that  of  those  whom  he  sought  to  represent ;  for 
example,  a  mortgagee  was  not  allowed  to  sue  in  behalf  of  general 
creditors  while  enforcing  his  mortgage;11  but  recent  authorities 
seem  to  have  changed  this  doctrine.12  All  on  whose  behalf  one 
sues  must  appear  to  have  an  interest  in  the  relief  prayed  for  by 
him.13  In  such  a  suit,  the  bill  may  be  dismissed  at  any  time  be- 
fore decree  by  the  consent  of  those  who  are  joined  as  plaintiffs,14 
but  not  afterwards,  since  by  the  decree  a  right  becomes  vested 
in  the  others.15  The  court  will  nearly  always  allow  a  bill  filed 
by  an  individual  in  his  own  right  to  be  amended,  so  as  to  allow 
him  to  sue  on  behalf  of  himself  and  other  members  of  a  class.16 

§  47.  Illustrations  of  Bills  filed  by  Representatives.  —  The  ordi- 
nary cases  of  bills  filed  by  one  person  of  a  class  on  behalf  of 
others  similarly  situated  are  bills  by  stockholders  of  corpora- 
tions;1 by  members  of  unincorporated  associations;2  by  railroad 
bondholders,3  of  whom  one  holding  bonds  secured  by  successive 

7  Brown  v.  Pacific  Mail  S.  S.  Co.,  5  674,  585 ;  Jones  v.  Garcia  del  Rio,  1  T. 
Blatchf.  C.  C.  625,  535.     But  see  Stewart    &  R.  297. 

v.  Dunham,  115  U.  S.  61.  "  Handford  v.  Storie,  2  Sim.  &  S.  196 ; 

8  Bromley  v.  Smith,  1  Simons,  8;  Tay-  Hubbell  v.  Warren,  8  Allen  (Mass.),  173. 
lor  v.  Salmon,  4  Myl.  &  Cr.  134 ;  Story's  15  Handford  v.  Storie,  2  Sim.  &  S.  196 ; 
Eq.  PI.  §114.    But  see  Jones  v.  Garcia  del  York  v.  White,  10  Jurist,  168;  Innes  v. 
Rio,  1  Turn.  &  Russ.  300.  Lansing,  7  Paige  (N.  Y.),  583. 

9  Bromley  v.  Smith,  1  Simons,  8,  11.  16  Johnson  v.  Compton,  4  Simons,  47 ; 

10  Clinch  v.  Financial  Corporation,  L.  Lloyd  v.  Loaring,  6  Ves.  773 ;  Daniell's 
R.  4  Ch.  App.  117  at  p.  122;  Story's  Eq.  Ch.  Pr.  (5th  Am.  Ed.)  236,  note  6,  and 
PI.  §  135  b.  245,  and  cases  cited. 

11  Burney  v.  Morgan,  1  Sim.  &  S.  358,  §  47.  1  Bacon  v.  Robertson,  18  How. 
362 ;  Palmer  w.Foote,  7  Paige  (N.Y.),  437;  480;  Wallworth  v.  Holt,  4  Myl.  &  Cr. 
White  v.  Hillacre,  3  Y.  &  C.  597.  635 ;  Taylor  v.  Salmon,  4  Myl.  &  Cr.  134 ; 

vz  Galveston  Railroad  v.  Cowdrey,  11  Hichens   v.    Congreve,   4   Russell,   562 ; 

Wall.  459 ;  Mason  v.  Bogg,  2  Myl.  &  Cr.  Gray  v.  Chaplin,  2  Sim.  &  S.  267  ;  Crease 

443 ;  Story's  Eq.  PL  §  101,  and  cases  there  v.  Babcock,  10  Met.  (Mass.)  632. 

cited.  2  Bainbridge  v.  Burton,  2  Beav.  539. 

13  Newton  v.  Earl  of  Egmont,  4  Simons,  8  Trustees    of    The   Wabash    &   Erie 


90  PARTIES.  [CHAP.  III. 

mortgages  may,  after  the  death  of  all  the  trustees,  sue  for  a  fore- 
closure on  behalf  of  himself  and  the  holders  of  each  class  of  the 
bonds  which  he  owns ; 4  and  bills  by  creditors.5  In  a  case  where 
a  railroad  mortgaged  its  property  directly,  without  the  interven- 
tion of  a  trustee,  to  fifteen  bondholders,  naming  them,  and  the 
adequacy  of  the  security  was  doubtful ;  it  was  held  that  one 
could  not  sue  on  behalf  of  the  rest,  but  that  all  the  bondholders 
must  be  joined  as  parties  to  the  bill.6  Such  bills  may  also  be 
filed  by  one  or  more  legatees,7  at  least  if  not  residuary  lega- 
tees;8 by  one  of  several  next  of  kin;9  by  one  of  several  part- 
ners ;10  by  one  of  a  class  for  the  benefit  of  which  a  charity  was 
founded;11  and  by  one  of  the  crew  of  a  privateer  seeking  an 
account  from  a  defendant  who  has  collected  their  joint  prize 
money.12 

§  48.  Suits  against  one  or  more  of  a  Class.  —  Similarly,  when 
persons  who  are  jointly  liable  are  very  numerous,  some  may  be 
sued  instead  of  all,  provided  that  the  manner  in  which  they  are 
sued  and  the  fact  that  they  are  numerous  are  stated  in  the  bill.1 
Ordinarily,  the  complainant  selects  such  of  the  class  as  he  chooses 
to  represent  the  rest.  In  one  case,  the  persons  thus  selected  were 
a  committee  chosen  by  the  rest  of  the  class  to  act  for  them  in  the 
matters  complained  of.2  It  is  proper,  however,  to  name  all  of  the 
class  in  the  title  to  the  bill,  and  then  have  the  court  select  some 
of  them  to  be  served  and  to  defend  for  the  rest.3  This  rule 
applies  to  members  of  a  club 4  or  other  unincorporated  associa- 
tion 5  when  sued  for  the  collection  of  its  debts ;  and  to  the  stock- 
holders of  a  corporation  in  a  suit  brought  by  a  creditor  after  its 

Canal  Co.  v.  Beers,  2  Black,  448 ;  Gal-        9  Story's  Eq.  PL  §  105. 
veston   Railroad   v.  Cowdrey,   11    Wall.       10  Chancey    v.    May,    Prec.    Ch.    592; 

459 ;  Central  Railroad  v.  Pettus,  113  U.  S.  Small  v.  Attwood,  1  Younge,  407. 
116.  u  Smith  v.  Swormstedt,  16  How.  288. 

4  Galveston  Railroad  v.   Cowdrey,  11       12  Good  v.  Blewitt,  13  Ves.  397 ;  West 
Wall.  459,  478.  v.  Randall,  2  Mason,  181,  194. 

5  Fink  v.  Patterson,  21  Fed.  R.  602.  §  48.   1  Story's  Eq.  PI.  §§  116, 117 ;  Mc- 

6  Railroad  Company  v.  Orr,  18  Wall.  Arthur  v.  Scott,  113  U.  S.  340,  395. 

471.  2  Railroad    Company    v.    Howard,    7 

T  Bennett  v.  Honywood,  Ambler,  708;  Wall.  392. 

Story's  Eq.  PI.  §  104,  and  cases  cited.  3  Ayres  v.  Carver,  17  How.  591. 

8  Upon  this  point  there  is  a  conflict  of  4  Cullen   v.  Duke   of  Queensberry,   1 

authority.     Compare  Brown  v.  Ricketts,  Brown  Ch.   101 ;  Cousins   v.   Smith,   13 

3  J.  Ch.  (N.  Y.)  555  ;  and  Davoue  v.  Fan-  Ves.  544  ;  Story's  Eq.  PI.  §  116. 

ning,  4  J.  Ch.  (N.  Y.)  199,  with  Kettle  v.  5  Mandeville  v.  Riggs,  2  Pet.  482 ;  Rail- 

Crary,  1  Paige   (N.  Y.),  417,  note.    See  road  Company  v.  Howard,  7  Wall.  392. 
also  Story's  Eq.  PI.  §  89. 


§  49.]  SUITS   AGAINST   REPRESENTATIVES   OF   A   CLASS.  91 

dissolution  to  recover  the  amount  of  its  capital  stock  which  has 
been  divided  among  them.6  The  equity  rule  upon  this  subject  is 
as  follows  :  "  When  the  parties  on  either  side  are  very  numerous, 
and  cannot,  without  manifest  inconvenience  and  oppressive  de- 
lays in  the  suit,  be  all  brought  before  it,  the  court  in  its  discretion 
may  dispense  with  making  all  of  them  parties,  and  may  proceed 
in  the  suit,  having  sufficient  parties  before  it  to  represent  all  the 
adverse  interests  of  the  plaintiffs  and  the  defendants  in  the  suit 
properly  before  it.  But  in  such  cases  the  decree  shall  be  with- 
out prejudice  to  the  rights  and  claims  of  all  the  absent  parties."7 
§  49.  Suits  by  or  against  one  or  more  as  Representatives  of  a 
Class  claiming  a  Common  Right.  —  In  some  instances  when  a 
number  of  persons  have  a  common  interest  in  the  decision  of 
a  question  of  fact  or  law,  though  they  have  no  common  interest 
in  any  property  which  is  the  subject  of  litigation,  yet,  as  they 
are  said  to  claim  under  a  common  right,  one  or  more  of  them 
have  been  allowed  to  represent  the  rest  as  plaintiffs  or  defend- 
ants in  a  suit  to  determine  the  disputed  question.1  Ordinarily, 
the  complainant  selects  such  defendants  as  he  considers  proper 
and  sufficient ;  but  he  may  name  all  of  the  class  in  the  title  of 
his  bill  and  ask  the  court  to  select  a  few  to  defend  on  behalf  of 
the  rest.*2  Instances  where  a  suit  of  this  kind  has  been  allowed 
by  one  or  more  as  plaintiffs  in  behalf  of  others  similarly  situated, 
have  usually  occurred  when,  though  the  plaintiff  and  those  rep- 
resented by  him  had  no  common  interest  in  property,  yet  he 
sought  a  determination  of  a  question  affecting  the  enjoyment  of 
estates  which,  though  distinct,  came  to  him  and  the  rest  from  a 
common  source.  Thus,  one  or  more  tenants  or  parishioners  may 
sue  a  lord  of  a  manor  or  parson  to  establish  a  right  of  common,3 
or  of  turbary.4  A  few  defendants  have  been  allowed  to  repre- 
sent a  large  class,  not  only  when  all  of  that  class  had  some  priority 
of  estate,  but  also  in  other  cases.  Thus,  a  parson  was  allowed  to 
sue  a  few  on  behalf  of  all  his  parishioners  to  establish  a  disputed 
right  to  tithes.5     A  lord  of  a  manor  may  sue  some  on  behalf  of 

6  Wood  v.  Dummer,  3  Mason,  315.  yers  v.  Lord  Abergavenny,  1  Atk.  285 ; 

7  Rule   48.     McArthur    v.    Scott,   113    Brown  v.   Vermuden,   1   Ch.  Cas.   272; 
U.  S.  340,  395.  Smith  v.  Earl  Brownlow,  L.  R.  9  Eq.  241. 

§  49.   i  West  v.  Randall,  2  Mason,  181,  4  Baker  v.  Rogers,  Sel.  Ch.  Cas.  74. 

195.  5  Brown  v.  Vermuden,  1  Ch.  Cas.  272  ; 

2  Ayres  v.  Carver,  17  How.  591.  Hardcastle  v.  Smithson,  3  Atk.  246. 

3  Anon.,  1  Chancery  Cases,  269;  Con- 


92  PARTIES.  [CHAP.  III. 

all  of  his  tenants  to  establish  their  duty  to  grind  at  his  mill  or 
his  right  of  enclosure,6  or  to  enforce  a  rent-charge.7  A  bill  was 
sustained  when  brought  by  those  interested  in  contesting  the 
legality  of  the  issue  of  certain  certificates  of  indebtedness,  against 
some  on  behalf  of  all  of  the  holders  of  such  certificates.8  It 
seems  that  a  bill  can  be  sustained  when  filed  by  one  claiming  the 
prior  equitable  title  to  a  tract  of  land,  against  some  on  behalf  of 
all  who  have  severally  bought  parcels  of  it  since  his  right  ac- 
crued, with  notice  thereof,  praying  that  their  conveyances  may 
be  set  aside  as  in  fraud  of  his  rights.9  "  And  it  has  long  been 
settled,  that  if  a  person  has  a  common  right  against  a  great  many 
of  the  king's  subjects,  inasmuch  as  he  cannot  contend  with  all 
the  king's  subjects,  a  court  of  equity  will  permit  him  to  file  a  bill 
against  some  of  them,  taking  care  to  bring  so  many  persons  be- 
fore the  court  that  their  interests  shall  be  such  as  to  lead  to  a 
fair  and  honest  support  of  the  public  interest ;  and  when  a  decree 
has  been  obtained,  then,  with  respect  to  the  individuals  whose 
interest  is  so  fully  and  honestly  established,  the  court  on  the 
footing  of  the  former  decree  will  carry  the  benefit  of  it  into  exe- 
cution against  other  individuals  who  were  not  parties."  10  Thus, 
a  city  may  file  such  a  bill  to  establish  its  right  to  levy  a  duty.11 
In  these  cases,  as  has  been  said,  a  decree  against  the  defendants 
before  the  court  has  been  held  in  England  to  bind  others  of  the 
same  class;12  but,  on  account  of  the  positive  language  of  the 
equity  rule  previously  quoted,  it  is  doubtful  whether  these  deci- 
sions would  be  followed  here.13 

§  50.  Omission  of  Defendants  not  -within  the  Jurisdiction  of  the 
Court.  —  The  second  exception  to  the  general  rule  is,  that  per- 
sons who  cannot  be  subjected  to  the  jurisdiction  of  a  court  of 
equity  need  not  be  joined  as  parties  to  a  bill,  provided  that  their 
presence  is  not  indispensable  to  a  decree.  "When  any  are  ab- 
sent from  the  jurisdiction  who,  if  within  it,  would  be  necessary 

6  Brown  v.  Vermuden,  1  Ch.  Cas.  272.       sex  "Water  Works  Co.,  1  Jac.  &  "Walk. 

7  Attorney-General  v.  Wyburgh,  1   P.     358,  369. 

Wms.  599;   8.  c.  2  Eq    Cas.  Abr.  167;  u  City  of  London  r.  Perkins,  3  Bro. 

Attorney-General  v.  Jackson,  11  Ves.  365,  Pari.  Cas.  602 ;  Mayor  of  York  v.  Pilking- 

367 ;  Attorney-General  v.  Shelly,  1  Salk.  ton,  1  Atk.  282. 

162.  VL  Brown  v.  Vermuden,  1  Ch.  Cas.  272 ; 

8  Sheffield  Water  Works  v.  Yeomans,  Lord  Eldon  in  Weale  v.  West  Middlesex 
L.  R.  2  Ch.  App.  8.    See  also  §§  Water  Works  Co.,  1  Jac.  &  Walk.  358,  369. 

9  Ayres  v.  Carver,  17  How.  591.  13  See  McArthur  v.  Scott,  113  U.  S.  340, 
i°  Lord  Eldon  in  Weale  v.  West  Middle-    395. 


§  50.]        OMISSION  OF  DEFENDANTS  WITHOUT  THE  JUKISDICTION.         93 

parties  defendant,  their  presence  will  ordinarily  be  dispensed 
with,  provided  an  equitable  and  effectual  decree  can  be  made 
against  those  who  have  been  served  with  process.  The  former 
English  practice  was  to  charge  in  the  bill  the  fact  of  the  ab- 
sence from  the  realm  of  any  who  otherwise  ought  to  have  been 
joined  as  defendants,  and  to  pray  that  they  might  be  served 
with  process  if  they  came  within  the  jurisdiction.  Under  the 
modern  English  system  this  strictness  is  not  required,  and  it 
seems  to  be  sufficient  if  the  excuse  for  not  making  the  absent 
parties  defendant  appears  on  the  face  of  the  bill."  1  This  rule 
of  equity  practice  has  been  affirmed  by  statute  in  the  United 
States.  "  When  there  are  several  defendants  in  any  suit  at  law  or 
in  equity,  and  one  or  more  of  them  are  neither  inhabitants  of  nor 
found  within  the  district  in  which  the  suit  is  brought,  and  do  not 
voluntarily  appear,  the  court  may  entertain  jurisdiction,  and  pro- 
ceed to  the  trial  and  adjudication  of  the  suit  between  the  parties 
who  are  properly  before  it,  but  the  judgment  or  decree  rendered 
therein  shall  not  conclude  or  prejudice  other  parties  not  regularly 
served  with  process  nor  voluntarily  appearing  to  answer;  and 
non-joinder  of  parties  who  are  not  inhabitants  of,  nor  found 
within  the  district  as  aforesaid,  shall  not  constitute  matter  of 
abatement  or  objection  to  the  suit."  2  This  statute  is,  however, 
merely  declaratory,  and  does  not  enlarge  the  power  previously 
possessed  by  courts  of  equity.3  The  power  has  received  an 
extension  here  by  rule,  and  parties  not  indispensable  to  an 
equitable  decree  may  be  omitted  if  their  joinder  would  oust 
the  court  of  jurisdiction  by  placing  persons  of  the  same  citizen- 
ship upon  different  sides  of  a  controversy.  "  In  all  cases  where  it 
shall  appear  to  the  court  that  persons  who  might  otherwise  be 
deemed  necessary  or  proper  parties  to  the  suit  cannot  be  made 
parties  by  reason  of  their  being  out  of  the  jurisdiction  of  the 
court,  or  incapable  otherwise  of  being  made  parties,  or  because 
their  joinder  would  oust  the  jurisdiction  of  the  court  as  to  the 
parties  before  the  court,  the  court  may  in  their  discretion  proceed 
in  the  cause  without  making  such  persons  parties  ;  and  in  such 
cases  the  decree  shall  be  without  prejudice  to  the  absent  parties." 4 

§  50.   *  Judge  Foster  in  Palmer  v.  Stev-        8  Shields  ».  Barrow,  17  How.  130, 141. 
ens,  100  Mass.  4G1,  pp.  465,  466.  *  Rule  47. 

a  U.  S.  R.  S.  §  737.    See  Conolly  v. 
Wells,  33  Fed.  R.  205. 


94  PARTIES.  [CHAP.  III. 

"  If  any  persons,  other  than  those  named  as  defendants  in  the 
bill,  shall  appear  to  be  necessary  or  proper  parties  thereto,  the 
bill  shall  aver  the  reason  why  they  are  not  made  parties,  by 
showing  them  to  be  without  the  jurisdiction  of  the  court,  or  that 
they  cannot  be  joined  without  ousting  the  jurisdiction  of  the 
court  as  to  other  parties.  And  as  to  persons  who  are  without 
the  jurisdiction  and  may  properly  be  made  parties,  the  bill  may 
pray  that  process  may  issue  to  make  them  parties  to  the  bill  if  they 
should  come  within  the  jurisdiction."  5  Such  being  the  general 
rule,  it  remains  to  be  considered  what  parties  are  indispensable 
to  an  equitable  decree.  As  has  been  said  above,  a  court  of  equity 
will  ordinarily  seek  to  have  before  it  as  parties  all  persons  in  any 
manner  interested  in  the  subject-matter  of  the  litigation,  in  order 
that  it  may  make  a  decree  which  will  prevent  the  necessity  of  a 
subsequent  appeal  to  its  aid.6  This  rule,  however,  having  been 
established  for  the  promotion  of  justice,  will  be  modified  when- 
ever its  rigid  enforcement  would  prevent  the  court  from  doing 
justice  to  a  person  invoking  its  aid.  Accordingly  it  will  proceed 
to  a  decree  without  the  presence  of  such  parties  as  cannot  be 
subjected  to  its  jurisdiction,  provided  it  can  determine  the  re- 
spective rights  of  the  parties  before  it  without  affecting  those  of 
the  rest.  There  are  three  classes  of  parties:  Formal  parties  ;  par- 
ties necessary  to  a  decree  which  completely  disposes  of  the  con- 
troversy, so  that  the  aid  of  the  court  need  not  be  invoked  again, 
but  whose  interests  are  so  far  separable  from  those  of  the  parties 
before  the  court,  that  it  can  dispose  of  the  controversy  between 
the  latter  without  affecting  the  interests  of  the  former  ;  and  par- 
ties with  an  interest  in  the  controversy  "  of  such  a  nature  that  a 
final  decree  cannot  be  made  without  either  affecting  that  interest, 
or  leaving  the  controversy  in  such  a  condition  that  its  final  deter- 
mination may  be  wholly  inconsistent  with  equity  and  good  con- 
science." 7  Of  these  the  first  two  classes  can  always  be  omitted, 
when  they  are  beyond  the  reach  of  the  process  of  the  court  or 
their  joinder  would  oust  its  jurisdiction.  The  rule  upon  the  sub- 
ject has  been  well  stated  by  Mr.  Justice  Bradley.  "  The  general 
rule  as  to  parties  in  chancery  is  that  all  ought  to  be  made  parties 
who  are  interested  in  the  controversy,  in  order  that  there  may  be 
an  end  of  litigation.     But  there  are  qualifications  of  this  rule  aris- 

6  Rule  22.  7  Mr  Justice  Curtis  in  Shields  v.  Bar- 

e  §  42.  row,  17  How.  130,  139. 


§   51.]  FORMAL    PARTIES.  95 

ing  out  of  public  policy  and  the  necessities  of  particular  cases. 
The  true  distinction  appears  to  be  as  follows :  First,  when  a  per- 
son will  be  directly  affected  by  a  decree  he  is  an  indispensable 
party,  unless  the  parties  are  too  numerous  to  be  brought  before 
the  court,  when  the  ease  is  subject  to  a  special  rule.  Secondly, 
when  a  person  is  interested  in  the  controversy,  but  will  not  be 
directly  affected  by  a  decree  made  in  his  absence,  he  is  not  an 
indispensable  party,  but  he  should  be  made  a  party  if  possible, 
and  the  court  will  not  proceed  to  a  decree  without  him  if  he  can 
be  reached.  Thirdly,  when  he  is  not  interested  in  the  contro- 
versy between  the  immediate  litigants,  but  has  an  interest  in  the 
subject-matter,  which  may  be  conveniently  settled  in  the  suit, 
and  thereby  prevent  further  litigation,  he  may  be  a  party  or  not 
at  the  option  of  the  complainant."  8 

§  51.  Formal  Parties  -who  may  be  omitted  when  without  the  Juris- 
diction.—  Formal  parties  are  those  with  a  naked  legal  title  but 
no  equitable  interest  in  the  subject-matter  of  the  controversy. 
If  the  persons  really  interested  are  before  the  court,  formal 
parties  can  always  be  omitted  if  without  the  jurisdiction  ; *  and 
their  joinder,  no  matter  whether  as  plaintiffs  or  defendants,  can- 
not oust  the  court  of  jurisdiction,  as  they  are  in  reality  upon 
neither  side  of  the  controversy.2  Such  are,  a  husband  against 
whom  no  relief  is  sought,  in  a  suit  by  his  wife  to  enforce 
the  trusts  of  a  marriage  settlement ; 3  one  or  all  of  the  trustees 
of  a  railroad  or  canal  mortgage  not  opposing  the  foreclosure 
in  a  bondholder's  foreclosure  suit ; 4  trustees  of  prior  railroad 
mortgages  in  a  suit  for  the  foreclosure  of  a  subsequent  mort- 
gage and  the  sale  of  the  mortgaged  property  subject  to  their 
liens;5  and  parties  with  the  naked  legal  title  having  no  inter- 
est  in  the    controversy.6      A   person   against   whom   an  injunc- 

8  Williams  v.  Bankhead,  19  Wall.  563,  3  Wormley  v.  Wormley,  8  Wheat.  421 ; 

671.  Taylor  v.  Holmes,  14  Fed.  R.  409.     But 

§  51.   *  Simms  v.  Guthrie,  9  Cranch,  19,  see  Watts  v.  Waddle,  1  McLean,  200. 

25 ;  Wormley  v.  Wormley,  8  Wheat.  421,  *  Pacific  R.  R.  v.  Ketchum,  101  U.  S. 

451 ;  Boon's  Heirs  v.  Chiles,  8  Pet.  532;  289,  299;  Stewart  v.  Chesapeake  &  Ohio 

Union   Bank   of   Louisiana   v.  Stafford,  Canal  Co.,  1  Fed.   R.  3G1  ;    Walden   v. 

12  How.  327  ;  New  Orleans  Canal  &  Bank-  Skinner,  101  U.  S.  577,  588. 

ing  Co.  v.  Stafford,  12  How.  343.  &  Pacific  R.  R.  v.  Ketchum,  101  U.  S. 

2  Wormley  v.  Wormley,  8  Wheat.  421,  289,  298. 

451;    Removal    Cases,    100   U.    S.   457;  6  Simms  v.  Guthrie,  9  Cranch,  19,  25; 

Pacific  R.  R.  v.  Ketchum,  101  TJ.  S.  289  ;  Boon's  Heirs  v.  Chiles,  8  Pet.  532  ;  Union 

Walden  v.  Skinner,  101  U.  S.  577  ;  Harter  Bank  of  Louisiana  v.  Stafford,  12  How. 

v.  Kernochan,  103  U.  S.  562.  327 ;  New  Orleans  Canal  &  Banking  Co.  v. 


96  PAKTIES.  [CHAP.  III. 

tion  is  sought,  unless  he  consents  thereto,  is  never  a  nominal 
party.7 

§  52.  Parties  whose  Interest  is  Separable.  —  The  second  class  is 
not  so  easy  to  define  ;  and  it  is  difficult  to  mark  the  limits  be- 
tween this  and  the  third  class  of  parties  who  are  always  indis- 
pensable. It  includes  all  having  an  interest  in  the  controversy 
so  far  separable  from  that  of  those  before  the  court  that  a  decree 
can  be  made  and  enforced,  which  disposes  of  the  matter  in 
dispute  between  the  latter  without  affecting  their  rights.1  Thus, 
a  trustee  or  director,  beyond  the  jurisdiction,  has  been  held 
properly  omitted  in  a  suit  against  his  colleagues  on  account  of  a 
breach  of  trust.2  For  a  trustee's  liability  is  joint  and  several.3 
One  of  the  next  of  kin4  may  sue  an  administrator  and  his 
sureties  ;  and  a  legatee,5  at  least  if  not  a  residuary  legatee,  may 
sue  an  executor  to  recover  his  share  of  a  decedent's  estate  with- 
out joining  the  rest  of  the  class  to  which  he  belongs.  It  seems, 
that  the  executor  of  a  dead  debtor  need  not  be  a  party  to  a  bill 
brought  by  a  creditor  of  the  estate  to  obtain  payment  out  of 
assets  in  the  hands  of  a  legatee.6  Subsequent  lienors  are  not 
indispensable  parties  to  a  foreclosure  suit.7  In  a  suit  against  a 
firm  by  strangers,  a  partner  beyond  the  jurisdiction  may  probably 
be  omitted  if  no  injustice  will  be  done  him  by  a  decree  in  his 
absence.8  It  has  been  held  that  in  a  suit  by  one  partner  against 
another  for  an  account  of  money  received  by  the  defendant  in 
excess  of  his  share  of  the  firm  assets,  partners  beyond  the  juris- 
diction may  be  omitted  if  it  appears  that  each  has  received  his 
full  share  of  the  joint  property.9     When  one  of  two  joint  contrac- 

Stafford,  12  How.  343 ;  Walden  v.  Skinner,  Wisner  v.  Barnet,  4  Wash.  C.  C.  631,  642  ; 

101  U.  S.  577,  588 ;  Bacon  v.  Rives,  106  Greene  v.  Sisson,  2  Curtis,  171. 

TJ.  S.  99.  5  Dandridge   v.   Washington's  Execu- 

1  Ward  v.  Arredondo,  1  Paine,  410 ;  tors,  2  Pet.  377.  See  West  v.  Randall, 
Mills  v.  Hurd,  32  Fed.  R.  127.  2  Mason,  181. 

§  52  .    !   Cameron     v.    McRoberts,    3  6  Milligan  v.  Milledge,  3  Cranch,  220. 

Wheat.  591 ;  Mallow  v.  Hinde,  12  Wheat.  '  Brewster  v.  Wakefield,  22  How.  118, 

193 ;   Gridley  v.  Wynant,  23  How.  500 ;  129  ;  Union  Bank  of  Louisiana  v.  Stafford, 

Horn  v.  Lockhart,  17  Wall.  570 ;  Nesmith  12  Howard,  327  ;  New  Orleans  Canal  & 

v.  Calvert,  1  Woodb.  &  M.  34.  Banking  Co.  v.  Stafford,  12  How.  343 ; 

2  Parsons   v.  Howard,  2  Woods,  1,  5 ;  Howard  v.  Railway  Co.,  101  U.  S.  837. 
Heath  v.  Erie  Ry.  Co.,  8  Blatchf.  C.  C.  8  Cowslad  v.  Cely,  Prec.  Ch.  83;  Dar- 
347  ;  Hazard  v.  Durant,  19  Fed.  R.  471,  went  v.  Walton,  2  Atk.  510 ;  Calvert  on 
476.  Parties,   Book  III.,   ch.  xxiii. ;    Vose  v. 

8  Parsons  v.  Howard,  2  Woods,  1,  5  ;  Philbrook,  3  Story  C.  C.  335.    But  contra, 

Heath  v.  Erie  Ry.  Co.,  8  Blatchf.  347.  Parsons  v.  Howard,  2  Woods,  1 ;  Bell  v. 

4  Payne  v.  Hook,  7  Wall.  425.     See,  Donohoe,  17  Fed.  R.  710. 

however,  West  v.  Randall;  2  Mason,  181 ;  9  Towle  v.  Pierce,  12  Met.  (Mass.)  329. 


§  52.]  PAETIES   WHOSE   INTEREST    IS   SEPARABLE.  97 

tors  has  fraudulently  released  his  interest  in  the  contract,  he  is 
not  an  indispensable  party  to  a  bill  filed  by  his  associate  against 
the  other  party.10  "  The  owners  of  partial  interests  in  contracts 
for  land,  acquired  subsequently  to  their  execution,  are  not  neces- 
sary parties  to  bills  for  their  enforcement.  The  original  parties 
on  one  side  are  not  to  be  mixed  up  in  controversies  between  the 
parties  on  the  other  side,  in  which  they  have  no  concern."  n  An 
heir  may  file  a  bill  for  the  specific  performance  of  a  contract  en- 
titling his  ancestor  to  purchase  land  without  bringing  in  the  per- 
sonal representative  of  his  ancestor,  provided  that  he  offers  him- 
self to  provide  for  the  payment  of  the  purchase-money.12  Specific 
performance  of  a  contract  for  the  sale  of  land  may  be  enforced 
against  one  of  several  joint  tenants  without  joining  the  others  with 
him  as  defendants.13  The  assignor  of  a  claim  is  not  a  necessary 
party  to  a  suit  upon  it  by  his  assignee  14  unless  the  assignment  be 
executory.15  A  railway  company  is  not  an  indispensable  party 
to  a  bill  against  its  receiver  to  enforce  specific  performance  of  a 
contract  made  by  it.16  The  directors  of  a  corporation  are  not 
indispensable  parties  to  a  suit  by  a  stockholder  to  restrain  it  from 
acting  in  violation  of  his  rights.17  To  a  bill  to  restrain  the  direc- 
tors of  a  corporation  from  negotiating  a  fraudulent  sale  of  its 
property,  the  person  to  whom  the  sale  is  about  to  be  made  is  not 
an  indispensable  party  if  no  contract  has  been  made  with  him.18 
To  a  suit  by  one  indorser  of  a  bill  of  exchange  to  restrain  the 
collection  of  a  judgment  for  the  amount  of  the  bill  against  him, 
upon  the  ground  that  the  bill  had  been  paid  by  another  indorser, 
the  latter  indorser  is  not  a  necessary  party.19  To  a  bill  by  a 
creditor  to  satisfy  a  judgment  out  of  land  in  a  debtor's  possession, 
but  fraudulently  conveyed  by  him  to  a  person  beyond  the  juris- 
diction of  the  court,  the  person  in  whose  name  the  land  stood  has 
been  held  not  to  be  an  indispensable  party.20     To  a  bill  to  enjoin 

10  Canal  Co.  v.  Gordon,  6  Wall.  661.  16  Express    Co.    v.    Railroad    Co.,    99 

11  Mr  Justice  Field  in  Willard  ».  Tay-     U.  S.  191. 

loe,  8  Wall.  557,  571.     But  see  Hoxie  v.  "  Heath  v.   Erie   Ry.  Co.,   8   Blatchf. 

Carr,  1  Sumner,  173.  C.  C.  347. 

12  Prout  v.  Rohy,  15  Wall.  471.  18  Abbot    v.    American    Hard   Rubber 
18  Stephen  v.  Beall,  22  Wall.  329.  Company,    4    Blatchford    C.    C.    489  ; 

14  Batesville  Institute  v.  Kauffman,  18     Wallace    v.    Holmes,    9    Blatchford    C. 
Wall.  151 ;  Trecothick  v.  Austin,  4  Mason,     C.  65. 

16.  19  Atkins  v.  Dick,  14  Pet.  114. 

15  Land  Co.  of  New  Mexico  v.  Elkins,       20  McCoy  v.  Rhodes,  11  How.  131,  141. 
20  Fed.  R.  545. 


98  PARTIES.  [CHAP.  HI. 

the  execution  of  a  judgment  of  ejectment  and  to  decree  a  con- 
veyance of  lands,  when  the  plaintiffs  had  an  equitable  title,  only 
the  persons  whose  legal  title  the  complainants  asserted  were  held 
properly  omitted,  when  no  relief  was  prayed  against  them,  and 
their  joinder  would  have  ousted  the  court  of  jurisdiction.21  It 
has  been  said,  that,  to  a  bill  by  a  private  individual  to  enjoin  the 
maintenance  of  a  public  nuisance,  neither  persons  jointly  inter- 
ested with  him  nor  those  jointly  guilty  with  the  defendant  are 
indispensable  parties.22  It  has  been  suggested  that  the  absence 
of  one  person  guilty  of  a  joint  fraud  might  not  prevent  the  court 
from  taking  jurisdiction  over  the  others.23  In  an  action  by  a 
creditor  of  a  corporation  to  enforce  the  individual  liability  of  its 
stockholders,  or  to  collect  unpaid  assessments  or  subscriptions 
from  them,  he  cannot  usually  sue  alone  at  law,  but  should  file 
a  bill  in  equity  in  behalf  of  himself  and  the  other  creditors,24  if 
any ;  and  he  may  ordinarily  make  one,  some,  or  all  the  stock- 
holders parties  according  to  his  pleasure.25  A  State  is  not  an 
indispensable  party  to  a  bill  seeking  to  restrain  its  officers  from 
levying  for  its  benefit  an  illegal  tax ; 23  nor,  it  has  been  held,  to  a 
bill  to  prevent  their  illegal  issue  of  land  warrants  for  property 
which  it  had  agreed  to  convey  to  the  plaintiff; 27  nor  to  a  bill  to 
restrain  their  unlawful  issue  of  bonds  which  would  diminish  the 
value  of  bonds  held  by  the  complainant.28  To  such  bills  the 
persons  to  whom  the  unlawful  issue  of  bonds  or  land  warrants  is 
about  to  be  made,  are  not  indispensable  parties.29 

§  53.  Parties  indispensable  to  a  Decree. —  No  suit,  however,  can 
proceed  unless  the  court  have  before  it  as  parties  all  persons  who 
will  be  directly  affected  by  the  decree  sought,  or  whose  obedience 

21  Simms  v.  Guthrie,  9  Cranch,  19,  25.  25  Ogilvie  v.  Knox  Ins.  Co.,  22  How. 
See  also  Boon's  Heirs  v.  Chiles,  8  Pet.  380;  Hatch  r.Dana,  101  U.S.  205;  Man- 
532.  But  compare  Mallow  v.  Hinde,  12  ufacturing  Company  v.  Bradley,  105  U.  S. 
Wheat.  193.     A  border  case  is  Elmendorf  175. 

v.  Taylor,  10  Wheat.  152.  26  Osborn     v.     Bank     of     the     United 

22  Mississippi  &  Missouri  R.  R.  Co.  v.  States,  9  Wheat.  738 ;  Dodge  v.  Woolsey, 
Ward,  2  Black,  485.  18  How.  331. 

23  Judge  Foster  in  Palmer  v.  Stevens,  V  Davis  ».  Gray,  16  Wall.  203 ;  Han- 
100  Mass.  461,  466.  See  also  Heath  v.  cock  v.  Walsh,  3*  Woods,  351.  But  see 
Erie  Railway  Co.,  8  Blatchf.  C.  C.  347.  Cunningham  v.  Macon  &  Brunswick  R 
But   see   Bell  v.   Donohoe,   17   Fed.    R.  R.  Co.,  109  U.  S.  446,  453. 

710.  28  Board    of  Liquidation    v.    McComb, 

24  Hornor  v.  Henning,  93  U.   S.  228;     92  U.  S.  531. 

Terry  v.  Little,  101  U.  S.  216 ;  Terrv  v.       29  Davis  v.  Gray,  16  Wall.  203,  233. 
Tubman,  92  U.  S.  156;  Pollard  v.  Bailey, 
20  Wall.  526. 


§  53.]  PAETIES   INDISPENSABLE    TO   A   DECREE.  99 

is  necessary  to  its  enforcement,  when  it  does  not  appear  that 
they  consent  thereto.1  A  person  is  affected  by  a  decree  when  his 
rights  against,  or  liability  to  any  of  the  parties  to  the  suit  is 
thereby  determined.  If  a  decree  in  favor  of  the  complainant 
would  cast  a  cloud  upon  another's  title,  that  person,  it  seems,  is 
thereby  directly  affected.2  A  State  is  an  indispensable  party  to 
a  bill  against  its  officers  to  compel  specific  performance  by  them 
for  it  of  its  contract  for  the  sale  of  land;3  or  to  establish  a  claim 
to  property  held  by  its  officers  claiming  a  title  in  the  State 
thereto ; 4  or  to  enjoin  its  officers  from  commencing  a  suit  in  its 
name.5  The  trustee  of  an  active  trust  is  a  necessary  party  to  a 
suit  affecting  the  trust  estate.6  Every  party  to  a  contract, 
whether  of  sale  or  for  another  purpose,  except  a  party  who  has 
released  his  interest,"  is  ordinarily  a  necessary  party  to  a  suit  to 
enforce  it;8  or  to  set  it  aside  ;  9  or,  unless  its  performance  would 
amount  to  a  nuisance,10  to  enjoin  a  person  from  carrying  it  into 
effect.11  Thus,  a  railway  company  is  an  indispensable  party  to  a 
suit  to  enjoin  another  railway  company  from  constructing  a  road 
under  a  lease  by  it.12  To  a  bill  against  the  administrator  with 
the  will  annexed  of  Kosciuszko,  claiming  a  legacy  under  an 
alleged  codicil  to  the  will,  foreigners  claiming  the  assets  of  the 
deceased  as  heirs-at-law  were  held  necessar}'  parties.13  To  a  bill 
between  partners  for  an  accounting,  all  the  surviving  partners 
and  the  representatives  of  a  deceased  partner,  even  when  alleged 
to  be  insolvent,  are,  it  seems,  indispensable  parties,14  unless  it  can 

§  53.   1  See  §  55.  Wirtz,  1  Wash.  C.  C.  417  ;  Tobin  v.  Walk- 

2  Young  v.  Clashing,  4  Biss.  456.  inshaw,   1  McAll.  20;  Bell  v.   Donolioe, 

8  Preston    v.   Walsh,   10  Fed.  R.  315.  17  Fed.  R.  710;  Florence  Sewing  Machine 

See  also  Walsh  v.  Preston,  109  U.  S.  297.  Company  v.  Singer  Manuf.  Company,  4 

4  Cunningham  v.  Macon  &  Brunswick  Fisher's  Pat.  Cas.  329;  s.  c.  8  Blatchford 
R.  R.  Co.,  109  U.  S.  446.  C.  C.  113.   But  see  French  v.  Shoemaker, 

5  In  re  Avers,  123  U.  S.  443.  14  Wall.  314. 

6  McRea  v.  Branch  Bank  of  Alabama,  10  Mississippi  &  Missouri  R.  R.  Co.  v. 
19  How.  376;  O'Hara  v.  MacConnell,  93  Ward,  2  Black,  485. 

U.  S.  150;  Thayer  r.  Life  Association,  112  n  Northern  Indiana  R   R    Company?;. 

U.  S.  717;    American  Bible    Society  v.  Michigan    Central    R.    R.    Company,    15 

Price,  110  U.  S.  61.     But  see  p.  63.     "  How.  233.     But  see  Heriot  v.   Davis,  2 

7  Canal  Company  v.  Gordon,  6  Wall.  Woodb.    &    M.   229 ;    Boon's    Heirs    v. 
561.  Chiles,  8  Pet.  532. 

8  Mallow   v.    Hinde,    12    Wheat.    193 ;  >'-*  Northern  Indiana  R.  R.  Co.  ?•.  Mich- 
Shields  p.  Barrow,  17  How.  130.  ignn  Central  R.  R.  Co.,  15  How.  233. 

9  Shields    v    Barrow,    17    How.    130;  13  Armstrong  v.  Lear,  8  Pet.  62. 
Coiron  v.  Millaudon,  19  How.  113;  Gny-  14  Bank  v.  Carrollton   R.  R.,  11  Wall. 
lonlsr  Kelshaw,l  Wnll. 81;  Ribonv.  Rail-  624;  Bartle  v.  Coleman,  3  Cranch  C.  C. 
road  Companies,  16  Wall.  446 ;  Lawrence  v.  283 ;  Gray  v.  Larrimore,  2  Abb.  C.  C.  542. 


100  PARTIES.  [CHAP.  III. 

be  shown  that  each  of  those  omitted  has  received  his  full  share 
of  the  assets,  and  that  no  claim  is  made  against  him.15  To  a  par- 
tition suit  all  of  the  tenants  in  common  are  indispensable  parties.16 
A  person  in  possession  under  a  claim  of  a  title  or  interest  in 
property  is  a  necessary  party  to  a  suit  affecting  it.17  The  mort- 
gagor is  a  necessary  party  to  a  suit  by  the  mortgagee  against  a 
third  person  to  remove  a  cloud  upon  the  title.18  To  a  bill  to  en- 
force specific  performance  of  a  contract,  providing  for  the  sale 
of  land  the  title  to  which  was  in  one  party,  and  its  distribution 
between  both  parties  to  the  contract,  when  filed,  after  the  death 
of  each,  by  the  personal  representatives  of  the  one  as  complainants, 
against  the  heirs-at-law  of  the  other  as  defendants,  the  executors 
of  the  defendant's  ancestor  are  necessary  if  not  indispensable 
parties  defendant,  and  the  heirs-at-law  of  the  complainants' 
decedent  are  not.19  All  a  man's  heirs-at-law  are  indispensable 
parties  to  a  bill  by  one  of  them  to  set  aside  a  sale  of  his  property 
under  a  decree ;  and  to  such  a  bill  the  party  to  the  former  suit 
at  whose  instance  the  sale  was  made  is  also  an  indispensable 
party.20  All  a  woman's  heirs  have  been  held  necessary  parties 
to  a  bill  to  set  aside  a  marriage  settlement.21  To  a  bill  by  a 
stockholder  to  set  aside  the  foreclosure  of  a  railroad  mortgage, 
the  trustees  of  the  mortgage  foreclosed,  the  mortgagor,  the  pur- 
chaser, and  enough  of  the  stockholders  and  bondholders  as 
consented  to  the  foreclosure  to  represent  the  remainder,  are 
indispensable  parties.22  A  corporation  or  its  receiver23  must 
be  a  party  to  a  suit  to  enforce  a  right  against  a  third  person 
which  the  corporation  refuses  to  assert.24  The  trustees  and 
county  treasurer  of  an  Iowa  township  are  necessary  parties 
to  a  suit  by  a  taxpayer  to  prevent  the  payment  to  their 
holder  of  bonds  claimed  to  be  invalid.25  It  seems,  that  the 
principal  debtor,  or   his  assignee  in  bankruptcy  or  insolvency, 

15  Towle  ?;.  Pierce,  12  Met.  (Mass.)  329.         21  McDonnell  v.  Eaton,  18  Fed.  R.  710. 

16  Barney  v.  Baltimore   City,  6   Wall.       22  Ribon    v.    Railroad    Companies,    16 
280.  Wall.  446. 

17  Williams  v.  Bankhead,  19  Wall  563 ;        ™  Porter  v.  Sabin,  36  Fed.  R.  475. 
Young  v.  Cushing,  4  Biss.  456.     But  see        24  Davenport   v.   Dows,   18  Wall.  626 ; 
Ringo  v.  Binns,  10  Pet.  269,  281.  New  Jersey  Central  R.  R.  Co.  v.  Mills,  113 

18  Bettes  v.  Dana,  2  Sumner,  383.  U.  S.  249,  256  ;  Bell  v.  Donohoe,  17  Fed. 
"  Seymour  v.  Freer,  8  Wall.  202,  218.     R.  710. 

See  Prout  ».  Roby,  15  Wall.  471.  ^  Sully   v.   Drennan,    113   U.    S.   287. 

20  Hoe  v.  Wilson,  9  Wall.  501 ;  Harwood     Compare  Harter  v.  Kernochan,  103  U.  S. 
r.  Railroad  Co.,  17  Wall.  78.  562. 


§  53.]  PAKTIES   INDISPENSABLE    TO   A   DECREE.  101 

is  a  necessary  party  to  a  suit  against  a  surety.26  To  a  suit 
by  a  creditor  to  enforce  a  lien  upon  property  through  a  trust- 
deed  made  for  the  benefit  of  a  surety,  both  the  trustee  and  his 
beneficiary  are  indispensable  parties,  although  the  property  is 
in  the  possession  of  neither  of  them  ;  but  if  filed  in  a  double 
aspect,  either  for  the  complainant's  individual  benefit,  or  on  be- 
half of  the  other  creditors  of  the  principal  debtor,  a  sale  may  be 
ordered  without  having  the  surety  or  his  trustee  before  the 
court.27  So,  a  debtor,  or  if  a  bankrupt  or  insolvent,  his  assignee, 
is  a  necessary  party  to  a  creditor's  suit  to  enforce  a  lien 28  or 
levy29  upon  property  in  which  the  debtor  has  an  interest,  or  to 
collect  30  a  debt  due  the  debtor.  A  corporation  must  be  joined 
as  a  defendant  to  a  bill  filed  by  a  creditor  to  apply  to  the  pay- 
ment of  its  indebtedness  money  due  it  from  its  stockholders;31 
and  to  a  bill  to  compel  a  transfer  upon  its  books  of  stock  which 
has  been  fraudulently  transferred  to  the  name  of  another  than 
the  complainant.32  To  a  bill  by  a  legatee  against  the  husband 
of  a  residuary  legatee  or  devisee  to  obtain  payment  of  the  com- 
plainant's legacy  from  assets  in  the  defendant's  possession,  the 
residuary  legatee  herself,  or,  if  she  be  dead,  her  personal  repre- 
sentative, is  a  necessary  party,33  at  least  when  it  does  not  appear 
that  she  or  her  personal  representative  is  without  the  jurisdiction 
of  the  court. 

It  was  held  in  a  case,  the  authority  of  which  may  be  doubted, 
when  it  did  not  appear  that  their  joinder  was  impossible  or  would 
oust  the  jurisdiction,  that  in  a  suit  to  compel  the  execution  of 
a  mortgage  and  its  foreclosure,  prior  incumbrancers  and  others 
claiming  an  interest  in  the  mortgaged  property  were  necessary 
parties.34  In  one  case  where  a  bill  was  filed  to  stay  proceedings 
in  ejectment,  the  court  required  the  nominal  defendant  at  law  to 
be  joined  as  a  co-plaintiff  with  the  real  person  interested ;  al- 
though it  did  not  appear  what  citizenship  he  had.35 

26  Robertson  v.  Carson,  19  Wall.  94.  31  Brigham  v.  Luddington,  12  Blatchf. 
See  also  Russell  v.  Clark,  7  Cranch,  69.  C.  C.  237  ;  First  National  Bank  v.  Smith, 
But  compare  Rule  51.  6  Fed.  R.  215;   Dormitzer  v.  Illinois   & 

27  McRea  v.  Branch  Bank  of  Alabama,  St.  L.  Bridge  Co.,  6  Fed.  R.  217  ;  Walsh 
19  How.  376.  v.   Memphis,   C.  &  N.   W.  R.  R.  Co.,  6 

28  Russell  v.  Clark,  7  Cranch,  69 ;  Rob-  Fed.  R.  797. 

ertson  v.  Carson,  19  Wall.  94.     But  see  82  Kendig  v.  Dean,  97  U.  S.  423. 

Heriot  v.  Davis,  2  Woodb.  &  M.  229.  83  Lewis  v.  Darling,  16  How.  1. 

29  Wilson  v.  City  Bank,  3  Sumner,  422.  8*  Caldwell  v.  Taggart,  4  Pet.  190. 

30  United  States  v.  Howland,  4  Wheat.  85  Hyde  v.  Folger,  4  McLean,  255. 
108. 


102  PARTIES.  [CHAP.  III. 

§  54.  When  Numerous  Interests  have  been  created  for  the  Pur- 
pose of  preventing  the  Plaintiff  from  obtaining  Equitable  Relief.  — 
When  numerous  interests  have  been  created  for  the  purpose  of 
preventing  a  person  from  obtaining  equitable  relief,  the  English 
courts  allowed  the  persons  to  whom  these  interests  were  thus 
conveyed  to  be  omitted  from  the  bill,  if  the  original  owner  of  the 
property  thus  divided  were  made  a  defendant.1  The  rule  and 
the  reasons  for  it  are  thus  stated  by  Calvert  in  his  valuable 
work  on  Parties :  "  If  a  party  has  divided  an  interest  amongst  a 
number  of  persons  for  this  purpose,  the  court,  in  order  that  the 
contrivance  may  be  frustrated,  and  the  equitable  relief  may  be 
obtained,  allows  the  suit  to  proceed  in  their  absence.  Such  a 
division  is  in  reality  a  fraud  ;  an  attempt  to  defeat  justice  by  con- 
verting the  general  rule  of  the  court  into  an  obstruction  to  the 
ordinary  proceedings.  The  court  defeats  the  fraud  by  refusing 
to  enforce  the  general  rule." 2  Lord  Hardwicke  said  upon  this 
subject:  "  Where  a  mortgagee  who  has  a  plain  redeemable  interest 
makes  several  conveyances  upon  trust,  in  order  to  entangle  the 
affair,  and  to  render  it  difficult  for  a  mortgagor  or  his  representa- 
tives to  redeem,  there  it  is  not  necessary  that  the  plaintiff  should 
trace  out  all  the  persons  who  have  an  interest  in  such  trust,  to 
make  them  parties." 3  This  rule  might,  perhaps,  be  extended 
here  to  a  case,  where  an  attempt  had  been  made  to  defeat  the 
jurisdiction  of  the  Federal  court  by  a  merely  colorable  convey- 
ance to  a  person  of  the  same  citizenship  as  the  complainant.4 

§  55.  When  a  Person  consents  to  the  Relief  sought.  —  A  person 
who  consents  to  the  relief  sought,  when  it  is  so  stated  in  the  bill, 
need  not  be  joined  as  a  defendant  with  the  other  parties  inter- 
ested, unless  his  presence  is  indispensable  for  their  protection.1 
Sometimes  the  plaintiff  is  required  to  execute  a  satisfactory 
undertaking  that  the  party  omitted  will  conform  to  the  decree.2 
Similarly,  a  person  who  disclaims  all  interest  in  the  subject-mat- 

§  54.    !  Calvert   on   Parties    ( 2d   ed.),  Canal   &  Banking   Co.    v.    Stafford,    12 

Book  I.  ch.  iv.,  p.  61  ;  Yates  v.  Hambly,  2  How.  343;  Leather  Manufacturers'  Bank 

Atk.  237.     See  also  Union  Bank  of  Lou-  v.  Cooper,  120  U.  S.  778,  781. 

isiana   v.   Stafford,    12    How.    327 ;   New  §  55.   1  Mechanics'  Bank  of  Alexandria 

Orleans  Canai  &  Banking  Co.  v.  Stafford,  v.  Seton,  1  Pet.  299,  306  ;  Calvert  on  Par- 

12  How.  343.  ties  (2d  ed.),  Book  I.  ch.  v.  pp.  09,  84. 

2  Calvert  on  Parties,  (2d  ed.)  61.  2  Calvert  on  Parties  (2d  ed.)  Book  I. 

8  Yates  v.  Hambly,  2  Atk.  237,  238.  ch.  v.,  p.  69;   Kirk  v.  Clark,  Prec.  in  Ch. 

4  See   Union    Bank    of    Louisiana    v.  275 ;   Harvey  v.  Cooke,  4  Russ.  35,  55 ; 

Stafford,    12   How.  327 ;    New    Orleans  Bawtree  v.  Watson,  3  M.  &  K.  339,  340. 


§  59.]      RELAXATION  OF  RULE  AS  TO  PARTIES  IN  SPECIAL  CASES.      103 

ter  may  also  be  omitted,  unless  his  joinder  is  essential  to  the 
protection  of  the  rights  of  the  other  defendants.3  An  agreement 
between  two  persons  that  one  shall  represent  the  other  as  plain- 
tiff, when  the  former  would  otherwise  have  no  right  to  the  relief 
sought,  will  not  be  sanctioned  by  the  court.4 

§  56.  When  the  Plaintiff  -waives  his  Right  against  a  Person.  — 
"  Where  a  plaintiff,"  said  Lord  Hardwicke,  "  is  only  concerned  in 
interest,  there  he  may  waive  his  demand,  and  omit  making  the 
party  a  defendant  to  his  bill."  1  In  accordance  with  this  prac- 
tice, the  equity  rules  provide  that  "  in  suits  to  execute  the  trusts 
of  a  will,  it  shall  not  be  necessary  to  make  the  heir-at-law  a 
party;  but  the  plaintiff  shall  be  at  liberty  to  make  the  heir-at- 
law  a  party  when  he  desires  to  have  the  will  established  against 
him."  2  Such  a  waiver  cannot,  however,  be  made,  unless  it  can 
be  without  prejudice  to  those  against  whom  the  bill  is  filed.3 

§  57.  "When  the  Interest  of  an  absent  Person  is  evidently  very 
small.  —  In  England  it  has  been  held,  in  accordance  with  the 
maxim  de  minimis  non  curat  lex,  that  when  the  interest  of  an 
absent  person  is  evidently  very  small  the  court  will  dispense  with 
his  presence  in  the  suit.1  This  view  seems  to  be  sanctioned  by 
two  decisions  of  the  Supreme  Court  of  the  United  States.2 

§  58.  When  the  Right  of  Administration  is  in  Dispute.  —  The 
English  rule  was,  that  when  there  was  a  contest  in  the  Ecclesi- 
astical Court  over  the  right  of  administration  upon  a  decedent's 
estate,  the  omission  in  a  bill  affecting  that  estate  of  an  adminis- 
trator might  be  excused  if  special  circumstances  were  shown.1 
If,  however,  no  proceeding  in  the  Ecclesiastical  Court  were  pend- 
ing, one  must  be  instituted  before  the  bill  could  be  filed.2 

§  59.  Relaxation  of  Rule  as  to  Parties  in  Special  Cases. —  The 
rules  upon  the  subject  of  parties  are,  however,  very  loose,  and 


3  Vattier  v.  Hinde,  7  Pet.  252,  258.  W.  513 ;  Attorney-General  v.  Goddard,  1 

4  Rylands  v.  Latouche,  2  Bligh,  579.  T.  &  R.  348,  350.     See  also  Faulkner  v. 
§  56.   i  Williams  v.  Williams,  9  Mod.  Daniel,  3  Hare,  199,  213. 

299.     See  also  Wilson  v.  Todd,  1  M.  &  C.  2  Union  Bank  of  Louisiana  v.  Stafford, 

42,  46;   Calvert  on  Parties  (2d  ed.),  83,  12   How.   327;    New   Orleans    Canal   & 

and  cases  cited.  Banking  Co.  v.  Stafford,  12  How.  343. 

2  Rule  50,  copied  from  the  31st  Order  §  58.   l  Plunket  v.  Penson,  2  Atk.  51  ; 
in  Chancery  of  August,  1841.  Penny  v.  Watts,  2  Phillips,  149, 154  ;  Cal- 

3  Anon  ,  2  Eq.  Cas.  Abr.  1G0,  pi.   6;  vert  on  Parties  (2d  ed.),  Book  I.  ch.  v. 
Story's  Eq.  PI.  §  139.  p.  70. 

§57.   !  Calvert    on    Parties   (2d   ed.),  2  Penny  v.  Watts,  2  Phillips,  149,154; 

Book  I.  ch.  v.  p.  70  ;  Daws  v.  Benn,  1  J.  &  Calvert  on  Parties  (2d  ed.),  Book  I.  ch.  v. 


104  PARTIES.  [CHAP.  III. 

the  questions  arising  under  them  are  decided  largely  in  the  dis- 
cretion of  the  court.1  "  The  necessity  for  the  relaxation  of  the 
rule  is  more  especially  apparent  in  the  courts  of  the  United 
States,  where,  oftentimes,  the  enforcement  of  the  rule  would  oust 
them  of  their  jurisdiction,  and  deprive  parties  entitled  to  the 
interposition  of  a  court  of  equity  of  any  remedy  whatever."  2  A 
court  of  equity  adapts  its  decrees  to  the  necessities  of  each  case  ; 
and  should  a  suit  brought  by  a  single  complainant  concerning  a 
matter  in  which  others  as  well  as  himself  were  interested  termi- 
nate in  a  decree  against  the  defendants,  it  is  easy  to  do  substan- 
tial justice  to  all  the  parties  in  interest,  and  prevent  a  multipli- 
city of  suits,  by  allowing  the  other  persons  similarly  situated 
with  the  plaintiff,  "  either  through  a  reference  to  a  master,  or  by 
some  other  proper  proceeding,  to  come  in  and  share  in  the  benefit 
of  the  litigation."3  The  discretion  as  to  the  joinder  or  omission 
of  parties  is,  however,  one  which,  when  properly  raised,  is  subject 
to  review  upon  appeal.4  An  act  of  Congress  relaxing  or  extending 
the  rules  as  to  parties  in  a  particular  case  is  constitutional.5 

§  60.  Restatement  of  the  Rules  as  to  Parties.  —  The  rules  upon 
the  subject  may  be  summarily  though  roughly  stated  thus  :  — 

I.  All  persons  not  too  numerous,  and  whose  joinder  will  not 
oust  the  jurisdiction  of  the  court,  who  have  any  direct  interest 
in  obtaining  or  resisting  the  relief  prayed  for  in  a  bill  or  granted 
in  a  decree  which  so  disposes  of  the  controversy  as  to  prevent 
any  future  litigation  concerning  the  same,  must  be  parties  to  a 
suit  in  equity.1 

II.  No  person  without  an  interest  in  the  controversy  or  its  set- 
tlement can  be  joined  as  a  party  except  the  officer  or  member  of 
a  corporation,  who  may  be  made  a  defendant  to  a  bill  praying 
relief  against  it,  in  order  to  compel  from  him  a  discovery  of  facts 
of  which  he  acquired  knowledge  in  his  official  capacity.2 

§  59.    1  Cameron     v.     McRoberts,     3  3  Mr.  Justice  Davis  in  Payne  v.  Hook, 
Wheat.  501 ;    Elmendorf    v.  Taylor,  10  7  Wall.  425,  432.     See  s.  c.  as  Hook  v. 
Wheat.  152,  167;   Lewis   v.  Darling,   16  Payne,  14  Wall.  252. 
How.  1;    Barney   v.   Baltimore    City,  6  *  Caldwell  v.  Taggart,  4  Pet.  196;  Rob- 
Wall.  280 ;  Payne  v.  Hook,  7  Wall.  425 ;  ertson   v.   Carson,   19  Wall.  94 ;    Hoe  v. 
Barney  v.  Latham,  103  U.  S.  205  ;  Greene  Wilson,  9  Wall.  501 ;  Railroad  Company 
v.  Sisson,  2  Curtis,  171 ;  West  v.  Randall,  v.  Orr,  18  Wall.  471. 
2    Mason,  181  ;    Parsons    v.    Howard,  2  8  United  States  v.  Union  Pacific  R.  R., 
Woods,  1 ;   Winter  v.  Ludlow,  3  Phila.  98  U.  S  569. 
(Pa.)  464.  §  60.   1  §§  42,  43,  50. 

2  Mr.  Justice  Davis  in  Payne  v.  Hook,  2  §  44. 
7  Wall.  425,  432. 


§  61.]  OBJECTION   FOR   WANT   OF    PARTIES.  105 

III.  If  the  persons  having  a  common  interest  in  the  subject  of 
the  controversy  or  the  question  to  be  decided  therein  are  numer- 
ous, they  may  in  certain  cases  be  represented,  as  plaintiffs  or 
defendants,  by  others  who  hold  the  legal  title  in  trust  for  them, 
or  by  one  or  more  of  their  number  suing,  or  more  rarely  being 
sued,  in  their  behalf.3 

IV.  Persons  having  a  mere  formal  interest,  or  an  interest  so 
far  separable  from  that  of  the  principal  parties,  that  a  decree 
disposing  of  the  controversy  as  between  the  latter  can  be  made 
and  enforced  without  affecting  their  rights,  may  always  be  omit- 
ted when,  by  reason  of  their  residence  or  citizenship,  not  within 
the  jurisdiction  of  the  court.4 

V.  All  persons  who  have  such  an  interest  in  the  controversy 
that  a  decree  cannot  be  enforced  without  directly  affecting  their 
rights  must  be  joined  as  parties  ;  except  possibly  when  their 
interest  is  very  small,  or  has  been  created  for  the  purpose  of 
depriving  the  court  of  jurisdiction.5 

VI.  There  is  no  need  of  joining  as  parties  any  against  whom 
the  plaintiffs  waive  their  rights,  or  who  are  willing  to  allow  the 
relief  prayed  for  in  the  bill,  unless  their  presence  is  necessary  for 
the  protection  of  those  who  have  been  made  defendants.6 

VII.  The  necessity  of  the  joinder  of  parties  is  always  in  the 
sound  discretion  of  the  court,  which  adapts  itself  to  the  facts  of 
each  particular  case.7 

§  61.  Objection  for  Want  of  Parties.  —  An  objection  that  there 
is  a  defect  of  parties  may  be  taken  by  demurrer,  plea,  or  answer,1 
or  at  the  hearing  ;  and  if  the  absent  persons  are  indispensable 
parties,  even  for  the  first  time  upon  appeal;2  although  not  if  a 
decree  has  been  made  which  cannot  prejudice  their  interests.3 
"If  a  defendant  shall,  at  the  hearing  of  a  cause,  object  that  a  suit 
is  defective  for  want  of  parties,  not  having  by  plea  or  answer 
taken  the  objection,  and  therein  specified  by  name  or  description 
the  parties  to  whom  the  objection  applies,  the  court  (if  it  shall 
think  fit)  shall  be  at  liberty  to  make  a  decree,  saving  the  rights  j 
of  absent  parties."  4     The  usual  practice  is  for  the  court,  if  it  con-  > 

i 

8  §§  46,  47,  48.  manner  of  taking  the  objection,  see  the 

4  §§  50,  51,  52.  chapters  on  those  pleadings. 

5  §§  53,  54,  57.  2  Hoe  v.  Wilson,  9  Wall.  501. 

6  §  55-  8  §§  52,  53. 

7  §  59.  «  Rule  53. 
§  61.    i  For  the  rules   regulating   the 


106  PARTIES.  [CHAP.  III. 

siders  the  objection  good,  to  allow  the  cause  to  stand  over  until 
the  plaintiff  shall  amend  his  bill  by  bringing  in  the  additional 
parties  needed.5  If  the  omitted  parties  on  account  of  their  citi- 
zenship cannot  be  brought  in,  the  court  may  retain  the  bill,  and 
perhaps  continue  an  injunction  in  accordance  with  its  prayer, 
until  the  complainants  have  had  a  reasonable  time  to  litigate  the 
matters  in  controversy  between  themselves  and  the  omitted  par- 
ties in  a  court  of  competent  jurisdiction ;  and  if  it  should  then 
appear  b}r  the  judgment  of  such  a  court  that  the  complainants 
have  in  equity  a  superior  title  to  the  omitted  parties,  proceed  to 
a  determination  of  the  rights  between  the  parties  to  the  bill.6  If, 
however,  the  complainant  does  not  within  a  reasonable  time 
amend  his  bill,  or  if  so  allowed  by  the  court,  proceed  against  the 
omitted  parties,  the  court  may  dismiss  his  bill;  but  such  dis- 
missal must  be  without  prejudice.7  "  Where  the  defendant  shall, 
by  his  answer,  suggest  that  the  bill  is  defective  for  want  of  par- 
ties, the  plaintiff  shall  be  at  liberty,  within  fourteen  days  after 
answer  filed,  to  set  down  the  cause  for  argument  upon  that  objec- 
tion only  ;  and  the  purpose  for  which  the  same  is  so  set  down 
shall  be  notified  by  an  entry,  to  be  made  in  the  clerk's  order- 
book,  in  the  form  or  to  the  effect  following  (that  is  to  say)  :  '  set 
down  upon  the  defendant's  objection  for  want  of  parties.'  And 
where  the  plaintiff  shall  not  so  set  down  his  cause,  but  shall  pro- 
ceed therewith  to  a  hearing,  notwithstanding  an  objection  for 
want  of  parties  taken  by  the  answer,  he  shall  not,  at  the  hearing 
of  the  cause,  if  the  defendant's  objection  shall  then  be  allowed, 
be  entitled  as  of  course  to  an  order  for  liberty  to  amend  his  bill 
by  adding  parties.  But  the  court,  if  it  thinks  fit,  shall  be  at 
liberty  to  dismiss  the  bill." 8  A  lack  of  proper  parties  is  not  a 
jurisdictional  defect ;  and,  therefore,  if  pending  the  decision  of 
the  court,  upon  an  objection  for  the  omission  of  a  party  whose 
presence  would  oust  the  circuit  court  of  jurisdiction,  he  dies,  and 
the  defect  is  thereby  cured,  the  court  will  retain  the  bill.a 

§  62.   Objection  for  Joinder  of  Improper  Parties.  —  If  persons  are 
improperly  joined  as  plaintiffs,  all  the  defendants  may  demur.1 

5  Hunt  v.  Wickliffe,  2  Pet.  '201,  215.  9  Harrison  v.  Rowan,  4  Wash.  C.  C.  202, 

6  Mallow  v.  Hinde,  12  Wheat.  193, 198,     208. 

199.  §  62.   i  Cuff   v.  Platell,  4  Russ.  242 ; 

7  Mallow  v.  Hinde,  12  Wheat.  193, 199;  King  of  Spain  v.  Machado,  4  Russ.  225 ; 
Hunt  v.  Wickliffe,  2  Pet.  201,  215.  Story's  Eq.  PI.  §  544. 

8  Rule  52. 


§62.] 


OBJECTION  FOR  JOINDER  OF  IMPROPER  PARTIES. 


107 


If  a  person  is  joined  as  a  plaintiff  without  his  consent,  he  may 
on  motion  upon  notice  to  all  parties  have  his  name  stricken  out 
with  costs  to  be  paid  by  the  plaintiff  who  has  improperly  brought 
him  into  the  suit.2  If  a  person  having  no  interest  in  the  contro- 
versy be  improperly  joined  as  defendant,  he  alone  can  demur.3 
And  no  notice  of  his  demurrer  need  be  given  to  the  other  defend- 
ants,4 except  in  special  cases  where  it  is  clearly  for  the  latter's 
interest  to  retain  him  in  the  suit.  If  a  misjoinder  is  apparent 
on  the  face  of  the  bill  it  is  more  prudent  to  demur.  If  such  an 
objection  is  not  made  till  the  hearing,  the  court  may  disregard 
it.5  It  cannot  be  raised  for  the  first  time  upon  appeal.6  When 
a  demurrer  is  sustained  in  favor  of  defendants  improperly  joined 
as  having  no  interest  in  the  controversy,  the  plaintiff  will  always 
be  allowed  to  amend  by  striking  out  their  names.7  If  the  bill  be 
dismissed  for  a  misjoinder  of  complainants  and  one  of  them  appears 
to  have  a  good  cause  for  equitable  relief,  the  dismissal  must  be 
without  prejudice.8 


2  Calvert  on  Parties  (2d  ed.)  430; 
Keppell  v.  Bailey,  2  M.  &  K.  517  Tit- 
terton  v.  Osborne,  1  Dickens,  350 ;  Wilson 
v.  Wilson,  1J.  &  W.  459. 

3  Wliitbeck  v.  Edgar,  2  Barb.  Ch. 
(N.  Y.)  106;  Seymour  v.  Freer,  8  Wall. 
202,  218  ;  Buerk  v.  Imhaeuser,  8  Fed.  R. 
457  ;  Story's  Eq.  PI.  §  544. 

*  Anon.,  9  Ves.  512  ;  Hodson  v.  Ball, 
11  Simons,  459;  Calvert  on  Parties  (2d 
ed),  430. 


5  Story  v.  Livingston,  13  Pet.  359; 
Eades  v.  Harris,  1  Y.  &  C.  N.  R.  235  ;  Raf- 
fety  v.  King,  1  Keen,  601 ;  Mosley  v., 
Taylor,  cited  in  1  Keen,  601,  s.  c.  2  Y.  &  J. 
520  ;  Calvert  on  Parties  (2d  ed.),  156  ; 
Story's  Eq.  PL  §  544. 

6  Livingston  v.  Woodworth,  15  How. 
546. 

7  Tryon  v.  Westminster  Improvement 
Comm'rs,  6  Jurist,  n.  s.  1324. 

8  House  v.  Mullen,  22  Wall.  42. 


108  BILLS.  [CHAP.  IV. 


CHAPTER  IV. 

BILLS. 

§  63.  Informations.  —  The  first  proceeding  in  a  suit  in  equity 
is  the  preparation  and  filing  of  the  first  pleading.  This  was  either 
an  information,  a  bill,  or  an  information  and  bill.  In  England, 
the  attorney-general  or  solicitor-general  could  file  an  information 
on  behalf  of  the  crown,  or  of  those  who  either  as  idiots  and 
lunatics  partook  of  its  prerogative,  or  whose  rights,  as  those  in 
charities,  were  under  its  particular  protection.  The  law  officers 
of  the  royal  consort  had  the  same  right.  If  the  suit  did  not 
immediately  concern  the  rights  of  the  crown,  a  relator,  who  sus- 
tained and  directed  the  litigation,  was  usually  joined  with  the 
officer  in  whose  name  it  was  filed.  The  main  distinction  between 
an  information  and  a  bill  was,  that,  whereas  the  latter  was  in  the 
form  of  a  petition  to  the  court;  in  the  former  the  officer  that  filed 
it  stated  the  case  by  way  not  of  petition  or  complaint,  but  of 
information  to  the  court  of  the  rights  which  the  crown  claimed 
on  behalf  of  itself  or  others,  and  of  the  invasion  or  detention  of 
those  rights  for  which  the  suit  is  instituted.  If  the  relator  had 
a  personal  interest  in  the  relief  sought,  his  personal  complaint 
was  joined  to,  and  incorporated  with  the  information  given  to 
the  court  by  the  officer  of  the  crown  ;  and  the  pleading  was 
termed  an  information  and  bill.1  The  proceedings  upon  an 
information  could  only  abate  by  the  death  or  determination  of 
interest  of  the  defendant.  If,  however,  the  information  were 
filed  at  the  instance  of  one  or  more  relators  and  all  died,  the 
court  would  not  allow  the  cause  to  proceed  till  an  order  had 
been  obtained  giving  leave  to  insert  the  name  of  a  new  relator, 
and  one  had  been  inserted  accordingly.  Otherwise,  proceedings 
upon  informations  were  substantially  the  same  as  upon  bills, 
except  that  great  laxity  of  practice  was  permitted  when  infor- 
mations were  filed  on  behalf  of  charities.2     In  the  courts  of  the 

§  63.   l  Mitford's  PI.  ch.  1.  a  Mitford's  PI.  ch.  1  ;  Story's  Eq.  PI. 

§8. 


§  64]  DEFINITION   AND   CLASSIFICATION   OF   BILLS.  109 

United  States,  it  has  been  held  to  be  the  proper  practice  for 
the  government  to  sue  in  equity  in  its  own  name  by  a  bill  simi- 
lar to  one  filed  by  a  private  citizen;3  but  a  pleading  styled  an 
information  filed  on  behalf  of  the  United  States,  being  in  sub- 
stance a  bill,  was  sustained  as  such,4  and  so  was  one  filed  on 
behalf  of  the  United  States  by  the  district  attorney  for  the  north- 
ern district  of  New  York.5  In  the  suit  brought  by  the  State 
of  Florida  against  the  State  of  Georgia  to  settle  the  boundary 
between  them,  the  attorney-general  of  the  United  States  was 
permitted  to  file  an  information  praying  "that  he  be  permitted  to 
appear  in  said  case,  and  be  heard  in  behalf  of  the  United  States, 
in  such  time  and  form  as  the  court  shall  order  ;  "  and,  although 
permission  for  him  to  take  testimony  in  the  name  of  Florida  with 
its  consent  was  refused,  it  was  "  Ordered,  that  the  attorney- 
general  have  leave  to  adduce  evidence,  either  written  or  parol, 
and  to  examine  witnesses  and  file  their  depositions,  in  order  to 
establish  the  boundary  claimed  by  the  United  States."6  Infor- 
mations have,  however,  been  filed  in  equity  in  the  courts  of  some 
of  the  individual  States.7  "  When  the  United  States  comes  into 
a  court  of  equity  as  a  suitor,  it  is  subject  to  the  defences  peculiar 
to  that  court."8  Such  an  information  or  bill  should  be  filed  in 
the  name  of  the  United  States,  not  in  the  name  of  one  of  its  law 
officers.9 

§  64.  Definition  and  Classification  of  Bills.  —  The  usual  course, 
and  the  only  one  open  to  a  private  citizen,  is  the  filing  of  a  bill. 
The  word  bill  is  derived  from  the  Latin  Ubellus ;  and  such  a 
pleading  is  sometimes  called  an  English  bill;  because  at  the 
time  when  pleadings  at  common  law  were  in  Law  Latin  or  Law 
French,  it  was  as  now  written  in  the  English  language.1  A  bill 
is  a  petition  addressed  to  the  judges  of  a  court  of  equity,  con- 
taining a  statement  of  the  facts  which  in  the  plaintiff's  opinion 

8  Benton    v.    Woolsey,    12    Pet.    27  ;  4  Wall.  232.     See  Benton  v.  Woolsey,  12 

United  States  v.  Hughes,  11   How.  552,  Pet.  27. 

568  ;  s.  c.  as  Hughes  v.  United  States,  4  5  Benton  v.  Woolsey,  12  Pot.  27. 

Wall.  232 ;  Mississippi  &  Missouri  R.  R.  6  Florida  v.  Georgia,  17  How.  478,  480, 

Co.  v.  Ward,  2  Black,  485,  492 ;   United  523. 

States  v.  Union  Pacific  R.  R.,  98  U.  S.  7  See  for  example  Attorney-General  i>. 

569;  Moffat  v.  United  States,  112  U.  S.  Butler,  123  Mass.  306. 

24;   United    States  v.  Minor,  114  U.  S.  8  United   States  v.  White,  17  Fed.  R. 

233.  561,  565. 

4  United  States   v.  Hughes,  11   How.  9  Benton  v.  Woolsey,  12  Pet.  27. 

552, 568  ;  a.  c.  as  Hughes  v.  United  States,  §  64.   1  Story's  Eq.  PL  §  7. 


110  BILLS.  [CHAP.  IV. 

give  him  a  right  to  sue,  and  concluding  with  a  prayer  for  the 
relief  to  which  he  deems  himself  entitled. 

Quis,  quid,  coram  quo,  quo  jure  petatur,  et  a  quo, 
Recte  compositus  quisque  libellus  habet.2 

Bills  are  divided  by  the  books  into  three  classes :  original  bills, 
bills  not  original,  and  bills  in  the  nature  of  original  bills.  A 
fourth  class,  which  may  be  termed  original  bills  in  the  nature  of 
bills  not  original,  is  recognized  by  the  Federal  courts.  Original 
bills  are  those  which  relate  to  some  matter  not  before  litigated 
in  the  court  at  equity  by  the  same  parties  standing  in  the  same 
interests.  Bills  not  original  are  those  which  relate  to  some  mat- 
ter already  litigated  in  the  court  at  equity  by  the  same  parties, 
or  their  representatives,  and  which  are  either  an  addition  to,  or 
a  continuance  of  an  original  bill,  or  both.  Bills  in  the  nature 
of  original  bills  are  those  which  serve  to  bring  before  the  court 
the  proceedings  and  decree  in  a  former  suit,  for  the  purpose  of 
either  obtaining  the  benefit  of  the  same  or  procuring  the  reversal 
of  the  decision  made  therein.3  Original  bills  in  the  nature  of 
bills  not  original  are  those  having  all  the  characteristics  of  origi- 
nal bills,  except  that  the  Federal  courts  will  take  jurisdiction 
of  them  without  regard  to  the  citizenship  of  the  parties,  or  the 
other  limitations  of  the  original  Federal  jurisdiction.4  Original 
bills  are  of  two  kinds :  those  which  pray  relief,  and  those  which 
do  not  pray  relief.  Original  bills  which  pray  relief  are  said  to 
belong  to  three  classes:  bills  which  pray  the  decree  of  the  court 
concerning  some  right  claimed  by  the  plaintiff  in  opposition  to 
some  right  claimed  by  the  defendant,  bills  of  interpleader,  and 
bills  of  certiorari.  Original  bills  not  praying  relief  are  of  two 
kinds  :  bills  to  perpetuate  the  testimony  of  witnesses,  and  bills 
of  discovery.  Bills  not  original  are  bills  of  revivor,  supple- 
mental bills,  and  bills  of  revivor  and  supplement.  Bills  in  the 
nature  of  original  bills  are  bills  in  the  nature  of  supplemental 
bills,  bills  in  the  nature  of  bills  of  revivor,  cross-bills,  bills  of 
review,  bills  impeaching  decrees  upon  the  ground  of  fraud,  bills 
to  suspend  the  operation  of  decrees  on  special  circumstances  or 
to  avoid  them  on  the  ground  of  matter  subsequent,  and  bills  par- 

2  Com.  Dig.  Chancery  E  2 ;  Story's  Eq.  4  Minnesota  Co.  v.  St.  Paul  Co.,  2  Wall. 
PI.  §  25.  609 ;  Krippendorf  v.  Hyde,  110  U.  S.  276 ; 

3  Mitford's  PI.  ch.  1,  §  2;   Story's  Eq.  Pacific  Railroad  of  Missouri  v.  Missouri 
PI.  §  10.  Pacific  Ry.  Co.,  Ill  U.  S.  505. 


§  65.]  FRAME   OF   A   BILL   IN   EQUITY.  Ill 

taking  of  the  qualities  of  some  one  or  more  of  these  bills.5  If 
the  court  has  jurisdiction  of  an  original  bill,  it  will  take  jurisdic- 
tion of  bills  not  original,  and  bills  in  the  nature  of  original  bills 
growing  out  of  the  first  suit,  without  regard  to  the  citizenship 
of  the  parties  thereto.6  And  in  certain  other  cases  it  will  take 
jurisdiction  of  bills  otherwise  original  which  are  so  intimately 
connected  with  matters  before  the  Federal  court  that  it  is  in  the 
interest  of  convenience  and  justice  to  have  them  disposed  of 
before  the  same  tribunal."  These  may  be  named  original  bills 
in  the  nature  of  bills  not  original.  Such  is  a  bill  to  obtain 
a  judicial  construction  of  previous  decrees ; 7  a  bill  to  obtain  a 
determination  of  the  rights  of  a  claimant  to  a  fund  in  the  hands 
of  a  Federal  marshal  ;8  a  bill  to  stay  proceedings  at  law  ;9  and  a 
bill  to  set  aside  a  decree.10  The  peculiarities  in  the  form  and  the 
procedure  upon  original  bills  not  praying  relief,  bills  not  original, 
and  bills  in  the  nature  of  original  bills,  will  be  discussed  in  the 
latter  part  of  this  work.  In  this  chapter,  the  form  of  original 
bills  praying  relief  and,  in  the  chapters  immediately  succeeding, 
the  proceedings  upon  them,  will  be  explained,  beginning  with 
the  ordinary  kind,  —  bills  which  seek  relief  concerning  some  right 
claimed  by  the  plaintiff  in  opposition  to  one  claimed  by  the 
defendant. 

§  65.  Frame  of  a  Bill  in  Equity.  —  Formerly,  bills  usually  con- 
sisted of  nine  parts :  the  direction  or  address,  the  introduction, 
the  premises  or  stating  part,  the  common-confederacy  clause,  the 
charging  part,  the  jurisdiction  clause,  the  interrogating  part, 
the  prayer  of  relief,  and  the  prayer  of  process.1  Of  these,  how- 
ever, the  common-confederacy  clause,  alleging  that  the  defendant 
or  defendants  are  combining  and  confederating  with  some  persons 
to  the  plaintiff  unknown,  whose  names  when  discovered  he  prays 
leave  to  insert  as  defendants,  which  owed  its  origin  to  an  idea 
that  otherwise  the  bill  could  not  be  amended  so  as  to  add  new 

5  Mitford's  PI.  ch.  1,  §  2  ;  Story's  Eq.  »  Logan   v.   Patrick,   5   Cranch,  288  ; 
PI.  §§  16-24.  Dunn  v.  Clarke,  8  Pet.  1  ;  Jones  v.  An- 

6  Clarke  v.  Mathewson,  12  Pet.  164;  drews,  10  Wall.  327,  333  j  Dunlap  v.  Stet- 
Jones    v.  Andrews,    10  Wall.   327,  333  ;  son,  4  Mason,  340. 

Pacific  R.R.of  Missouri  y.  Missouri  Pacific  M  Pacific  Railroad  of  Missouri  v.  Mis- 
Ry.  Co.,  Ill  U.  S  505.     See  §  21.  souri  Pacific  Railway  Company,  111  U.  S. 

7  Minnesota  Co.  v.  St.  Paul  Co.,  2  Wall.     505. 

609.     See  §  21.  §  65.   '  Mitford's  PI.  ch.  1,  §  3 ;  Storv's 

8  Krippendorf  v.  Hyde,  110  U.  S.  276;     Eq.  PI.  §§  26-48. 
Freeman  v.  Howe,  24  How.  450. 


112  BILLS.  [CHA.P.  IV. 

defendants,  and  its  retention  to  the  practice  of  taxing  costs 
according  to  the  length  of  the  documents  filed ;  the  charging 
part,  alleging  the  defence  which  it  anticipated  would  be  made 
by  the  defendant,  and  the  reply  which  the  plaintiff  intended  to 
make  thereto  ;  and  the  jurisdiction  clause,  alleging  that  the  acts 
of  the  defendant  which  were  complained  of  were  contrary  to 
equity,  and  that  the  plaintiff  was  without  any  remedy  at  law : 
were  not  even  then  considered  necessary  by  the  best  authorities,2 
and  by  the  equity  rules  have  been  expressly  declared  super- 
fluous.3 

§66.  The  Address  and  Introduction.  —  In  England,  a  bill  ill 
chancery  was  required  to  be  addressed  to  the  person  having  the 
custody  of  the  great  seal,  usually  either  the  sovereign  or  the 
Lord  Chancellor,  except  when  the  Lord  Chancellor  himself  was 
the  complainant,  when  it  was  addressed  to  the  sovereign  "  in  his 
high  court  of  chancery."1  In  the  United  States,  as  a  great  seal 
is  not  as  in  England  essential  to  the  validity  of  writs  in  equity, 
a  bill  is  addressed  to  the  judge  or  judges  of  the  court  where  it  is 
filed.2  The  introduction  formerly  contained  the  names,  descrip- 
tions, and  residences  of  the  complainants,  together  with  the 
character  in  which  they  sued,  if  in  a  representative  capacity,  and 
such  other  allegations  as  were  necessary  to  found  the  jurisdiction 
of  the  court.3  Sometimes  the  names  and  descriptions  of  the  de- 
fendants were  also  here  inserted,  but  it  was  more  usual  to  name 
them  in  the  next  part  of  the  bill.4  The  equity  rules  regulate 
the  subject  as  follows :  "  Every  bill  in  the  introductory  part 
thereof  shall  contain  the  names,  places  of  abode,  and  citizenship 
of  all  the  parties,  plaintiffs  and  defendants,  by  and  against  whom 
the  bill  is  brought.  The  form,  in  substance,  shall  be  as  follows : 
'  To  the  judges  of  the  circuit  court  of  the  United  States  for  the 

district  of  :  A.  B.,  of  ,  and  a  citizen  of  the  State  of 

,  brings  this  his  bill  against  C.  D.,  of  ,  and  a  citizen  of 

the  State  of  ,  and  E.  F,  of ,  and  a  citizen  of  the  State 

of  .     And  thereupon  your  orator  complains  and  says  that,' 

&c."  5     If  one  of  the  parties  is  a  corporation  the  bill  must  state 

2  Mitford's  PI.  ch.  1,  §  3  ;  Langdell's  Eq.  3  Mitford's  PI.  ch.  1,  §  3 ;  Story's  Eq  PI. 
PL  §  55 ;  Story's  Eq.  PI.  §§  29,  32,  33, 34.      §  26. 

3  Rule  21.  4  Story's  Eq.  PI.  §  26.     Contra,  Leaven- 
§  m.  !  Mitford's  PI.  ch.  1,  §  3 ;  Story's     worth  v.  Pepper,  32  Fed.  R.  718. 

Eq.  PI.  §  26.  5  Rule  20;  United  States  v.  Pratt  Coal 

2  Rule  20  &  Coke  Co.,  18  Fed.  R.  708;  §  69. 


§  67.]  THE   NARRATIVE   PART   OF   A   BILL.  113 

by  or  under  the  laws  of  what  State  it  was  created,  and  its  mem- 
bers will  then  be  conclusively  presumed  to  be  citizens  of  that 
State.6  If  one  of  the  parties  is  an  alien,  it  should  aver  that  he  is 
"  a  citizen  and  subject  of  a  foreign  State,"  specifying  that  State's 
name.7  How  advantage  could  be  taken  of  an  omission  in  the 
introduction  of  the  residence  of  the  parties,  whether  by  demurrer 
or  simply  by  a  motion  for  security  for  costs,  was,  under  the  old 
practice,  a  doubtful  question.8  The  bill  is  certainly  demurrable 
if  enough  does  not  appear  upon  its  face  to  show  the  court's  juris- 
diction.9 A  defect  in  this  respect  in  the  introductory  part  of  a 
bill  is,  it  seems,  not  cured  by  an  allegation  in  its  title  or  caption.10 
It  has  been  said  that  no  one  can  be  made  a  defendant  under  a 
fictitious  name  ; u  but  in  an  English  case  where  the  parents  of  an 
infant,  who  was  a  necessary  defendant  to  a  bill,  refused  to  have 
her  baptized  in  order  to  interpose  difficulties  in  the  plaintiff's 
way,  Sir  John  Leach  ordered  that  she  should  be  described  as 
"  the  youngest  female  child  of  A.  B.  (naming  her  father)  and 
C.  D.  (naming  her  mother)." 12  Although  this  part  of  the  bill 
should  contain  the  statement  that  the  complainant  sues  on  be- 
half of  others  as  well  as  himself,  if  he  intends  so  to  do,  it  has 
been  suggested  that  this  might  not  be  necessary  when  his  case 
is  founded  upon  a  statute  "  which  itself  gives  that  force  and 
direction  to  the  bill."13 

§  67.  The  Narrative  Part  of  a  Bill.  —  The  most  important  por- 
tion of  a  bill  in  equity  is  the  narrative  or  stating  part.  This 
contains  the  plaintiff's  cause  of  action.  "  It  should  set  forth  the 
plaintiff's  case  in  a  clear  and  distinct  narrative,  with  the  facts 
relied  upon  as  the  basis  of  the  suit.  For  convenience,  each  para- 
graph should  be  numbered,  so  that  the  successive  allegations  may 
be  readily  referred  to.1  The  object  of  old  common-law  pleading 
was  to  bring  the  matter  in  controversy  to  certain  distinct  issues. 
In  equity  pleading  no  such  attempt  is  made.  The  statement  of 
the  plaintiff's  case  in  the  bill  differs  little  in  language  or  form 

6  Lafayette  Ins.  Co.  v.  French,  18  How.  in  Jackson  v.  Ashton,  8  Pet.  148.     See 
404 ;    Muller    v.  Dows,  94   U.    S.   444 ;  Sharon  v.  Hill,  23  Fed.  R.  353. 
Steamship  Co.  v.  Tugman,  106  U.  S.  118.  u  Kentucky  Silver  Mining  Co.  v.  Day, 

7  Wilson  v.  City  Bank,  3  Sumner,  422.  2  Sawyer  C.  C.  468. 

8  Rowley  v.  Eccles,  1  Sim.  &  S.  511;  u  Eley  v.  Broughton,  2  Sim.  &  S.  188. 
Daniell's  Ch.  Pr.  (2d  Am.  ed.),  409.  13  Irons   v.  Manufacturers'  Nat.  Bank 

9  Bingham  v.  Cabot,  3  Dall.  382 ;  Jack-  of  Chicago,  17  Fed.  R.  308. 

son  v.  Ashton,  8  Pet.  148 ;  United  States  v.         §  67.   1  An  omission  to  do  tins  will  not 
Pratt  Coal  &  Coke  Co.,  18  Fed.  R.  708.        be  a  defect  in  pleading. 


114  BILLS.  [CHAP.  IV. 

from  any  other  statement  of  facts  which  might  be  drawn  up  for 
the  information  of  third  parties,  say  an  application  to  a  govern- 
ment board.  The  defendant's  answer  usually  admits,  or  denies, 
or  qualifies  seriatim  each  statement  in  the  bill ;  and  occasionally, 
before  proceeding  to  notice  the  statement  in  detail,  the  defendant 
gives  a  general  history  of  the  case  from  his  own  point  of  view. 
The  issues,  both  of  fact  and  of  law,  are  thus  often  involved  in 
large  masses  of  statement,  and  have  to  be  selected,  so  to  speak, 
by  the  judge  who  tries  the  cause,  with  the  assistance  of  the 
arguments  of  counsel.  It  would  be  difficult  to  imagine  a  less 
technical  document  than  a  bill  in  equity."  2  The  bill  must  con- 
tain every  fact  essential  to  the  plaintiff's  cause  of  action.  For 
no  evidence  will  be  admitted  to  prove  any  fact  not  alleged  in  it.3 
It  must  plead  every  fact  essential  to  the  rights  of  the  plaintiff, 
and  necessarily  within  his  knowledge  positively,  not  upon  in- 
formation and  belief,4  and  with  certainty.5  Otherwise,  it  is  de- 
murrable. An  allegation  that  an  event  occurred  on  or  about  a 
certain  specified  day  is,  however,  sufficient.6  And  less  certainty 
is  required  concerning  facts  of  which  a  discovery  is  sought  from 
the  defendant.7 

§  68.  Scandal  and  Impertinence.  — "  Every  bill  shall  be  ex- 
pressed in  as  brief  and  succinct  terms  as  it  reasonably  can  be, 
and  shall  contain  no  unnecessary  recitals  of  deeds,  documents, 
contracts,  or  other  instruments,  in  haeo  verba,  or  any  other  im- 
pertinent matter,  or  &ny  scandalous  matter  not  relevant  to  the 
suit."1  "Facts  not  material  to  the  decision  are  impertinent,  and 
if  reproachful  they  are  scandalous  ;  and,  perhaps,  the  best  test 
by  which  to  ascertain  whether  the  matter  be  impertinent  is  to 
try  whether  the  subject  of  the  allegation  could  be  put  in  issue, 
and  would  be  matter  proper  to  be  given  in  evidence  between  the 

2  Lectures  before  the  Law  School  of  5  Harrison  v.  Nixon,  9  Pet.  483,  503 ; 
Boston  University  on  Equity  Pleading  Wormald  v.  De  Lisle,  3  Beav.  18  ;  Brooks 
bv  Judge  Dwight  Foster,  M.  S.  See  &  Hardy  i».  O'Hara  Brothers,  8  Fed.  R. 
Hayne's  Eq.  70.  529  ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  421- 

3  Gordon  v.  Gordon,  3  Swanst.  400,  472 ;  425. 

Miller  v.  Cotten,  5  Ga.  341,  346 ;  Wilson  6  Richards  w.  Evans,  1  Ves.  Sen.  39 ; 

v.   Stolley,  4  McLean,  275 ;   Crocket  v.  Roberts  v.   Williams,   12   East,   33,   37 ; 

Lee,  7  Wheat.  522 ;  Jackson  v.  Ashton,  Leigh  v.  Leigh,  Daniell's  Ch.  Pr.  369. 

8  Pet.  148.  7  Towle    v.  Pierce,    12    Met.    (Mass.) 

4  Lord  Uxbridge  v.  Staveland,  1  Ves.  329,332;  Lafayette  Co.  v.  Neely,21  Fed. 
Sen.   56 ;  Egremont   v.  Cowell,  5  Beav.  R.  738. 

620;  Mitford's   PI.   40;   Story's  Eq.   PI.         §68.   *  Rule  26. 
§§  255,  256 


§  68.]  SCANDAL   AND    IMPERTINENCE.  115 

parties."  2  It  is  customary  in  bills  seeking  the  protection  or  en- 
forcement of  rights  depending  upon  complicated  provisions  of 
Federal  or  State  statutes,  to  set  forth  such  statutes  either  at 
length  or  according  to  their  legal  effect;  and  when  the  com- 
plainant depends  upon  historical  facts,  of  which  the  court  will 
take  judicial  notice,  to  state  such  facts  also.  Sometimes  former 
decisions  of  the  courts  are  similarly  pleaded.  Although  this 
practice  is  not  strictly  correct,  it  is  still  convenient  for  the  court 
as  well  as  counsel,  inasmuch  as  the  case  made  by  the  bill  is 
thereby  made  more  easy  of  comprehension.  It  seems  that  ex- 
ceptions to  such  allegations  for  impertinence  cannot  be  sustained.3 
If  a  bill  contain  scandalous  or  impertinent  matter,  "  it  may,  on 
exceptions,  be  referred  to  a  master  by  any  judge  of  the  court,  for 
impertinence  or  scandal ;  and  if  so  found  by  him,  the  matter  shall 
be  expunged  at  the  expense  of  the  plaintiff,  and  he  shall  pay  to 
the  defendant  all  his  costs  in  the  suit  up  to  that  time,  unless  the 
court  or  a  judge  thereof  shall  otherwise  order.  If  the  master 
shall  report  that  the  bill  is  not  scandalous  or  impertinent,  the 
plaintiff  shall  be  entitled  to  all  costs  occasioned  by  the  refer- 
ence."4 "  No  order  shall  be  made  by  any  judge  for  referring 
any  bill,  answer,  or  pleading,  or  other  matter  or  proceeding  de- 
pending before  the  court,  for  scandal  or  impertinence,  unless 
exceptions  are  taken  in  writing  and  signed  by  counsel,  describing 
the  particular  passages  which  are  considered  to  be  scandalous  or 
impertinent ;  nor  unless  the  exceptions  shall  be  filed  on  or  before 
the  next  rule-day  after  the  process  on  the  bill  shall  be  returnable, 
or  after  the  answer  or  pleading  is  filed.  And  such  order  when 
obtained  shall  be  considered  as  abandoned,  unless  the  party  ob- 
taining the  order  shall,  without  any  unnecessary  delay,  procure 
the  master  to  examine  and  report  for  the  same  on  or  before  the 
next  succeeding  rule-day,  or  the  master  shall  certify  that  further 
time  is  necessary  for  him  to  complete  the  examination."5  It  has 
been  held  in  England  that  a  person  not  a  party  to  the  suit  may, 
by  leave  of  the  court,  file  exceptions  to  a  bill  for  scandalous 

2  Chancellor  Kent  in  Woods  v.  Mor-  tion  Co.,  15  Fed.  R.  5G1 ;  s.  c.  8  Sawyer, 

rell,  1  J.  Ch.  (N.  Y.)  103,  at  p.  106.     See  600;  Allen  v.  O'Donald,  23  Fed.  R.  573; 

also  Hood  v.  Inman,  4  J.  Ch.  (N.  Y.)  437.  Steam  Gauge  &  Lantern  Co.  v.  McKob- 

For  an  illustration  of    scandal,   see  the  erts,  26  Fed.  R.  765. 

record  in  United   States  v.  Schurz,  102  4  Rule  26. 

U.  S.  378.  5  Rule  27. 

8  Wells  v.  Oregon  Railway  &  Naviga- 


116  BILLS.  [CHAP.  IV. 

matter  reflecting  upon  himself;6  and  that  the  court  may  of  its 
own  motion  expunge  scandalous  matter  at  any  time.7  Excep- 
tions for  impertinence  cannot,  however,  be  taken  after  answer.8 
Neither  scandal  nor  impertinence,  however  gross,  is  a  ground  for 
demurrer,  it  being  a  maxim  of  pleading  that  utile  per  inutile  non 
vitiatur.9  It  has  been  said  that  an  exception  for  impertinence 
must  be  allowed  in  whole  or  not  at  all.10 

§  69.  Certainty.  —  A  bill  must  state  the  plaintiffs  case  with 
sufficient  certainty.  Thus  a  bill  by  a  receiver  of  a  national  bank 
to  recover  for  the  loss  caused  to  it  by  the  negligence  of  its 
directors,  which  prays  relief  against  the  persons  who  have  acted 
as  directors  during  various  periods  of  time,  together  with  the 
representatives  of  such  as  are  dead,  must  "  state  the  dates  of  the 
losses  sustained  by  the  corporation  and  the  dates  of  the  acts  or 
omissions  contributing  to  those  losses,  with  sufficient  certainty 
to  inform  each  of  the  defendants  with  which  and  how  many  of 
the  losses  it  is  sought  to  charge  him."  *  The  bill  must  state 
facts,  not  conclusions  of  law,  which  will  be  disregarded  by  the 
court.2  Thus  a  general  charge  of  fraud  is  not  sufficient,  but  it 
must  allege  the  specific  acts  or  language  which  constitute  the 
fraud.3  An  allegation  of  a  fraudulent  intent  has  been  held  to 
be  an  allegation  of  a  fact.4  It  is  not  sufficient  to  state  that  the 
defendant  is  a  trustee,  without  alleging  the  facts  by  which  he  is 
shown  to  be  a  trustee.5  An  allegation  that  a  defendant  cor- 
poration is  about  to  exceed  its  powers  is  insufficient.  The  bill 
must  show  what  acts  are  threatened  and  why  they  exceed  the 
powers  of  the  corporation.6  "  The  pleader  should  state  the  facts, 
and  not  formulate  mere  epithetic  '  charges.'  ...  If  the  facts  are 
not  to  be  ascertained  by  diligence,  or  because  of  some  obstruc- 
tion, or  if  the  evidence  of  them  is  in  possession  of  the  other  side, 

6  Williams  v.  Douglas,  5  Beav.  82  ;  §  69.  !  Price  v.  Coleman,  21  Fed.  R. 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)  402.               357. 

7  Ex  parte  Simpson,  15  Ves.  476  ;  Dan-         2  Harper  v.  Hill,  35  Miss.  63. 

iell's   Ch.   Pr.    (2d  Am.   ed.)    402,   403;  a  Gilbert  v.  Lewis,  1  De  G.,  J.  &  Sm. 

Story's  Eq.  PI.  §  270.     See  also  Langdon  38,  49 ;   Bryan   v.   Spruill,  4  Jones  Eq. 

v.  Goddard,  3  Story,  13.  (N.  C),  27;  United  States  v.  Atherton, 

8  Story's  Eq.  PI.  §  270.  102  U.  S.  372. 

9  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  401.         *  Piatt  v.  Mead,  9  Fed.  R.  91. 
See  also  Pacific  Railroad  of  Missouri  v.         5  Evan  v.  Avon,  29  Beav.  144. 
Missouri  Pacific  Ry.  Co.,  Ill  U.  S.  505,         6  Leo  v.  Union  Pac.  Ry.  Co.,  19  Fed. 
516,  522.  R.  283. 

10  Chapman  v.  School  District  No.  1, 
Deady,  108,  117,  per  Deady,  J. 


§  70.]      INCONSISTENCY   AND   BILLS   WITH   A   DOUBLE   ASPECT.  117 

this  should  be  made  to  appear,  with  technical  averments  showing 
the  necessity  of  discovery,  when  that  is  wanted  ;  but  a  court  can- 
not sustain  a  bill  upon  mere  denunciatory  statements  of  the  plain- 
tiffs suspicions  or  belief.  The  best  pleadings  are  those  which 
state  the  inculpatory  facts  that  carry  with  them  their  own  con- 
viction of  the  fraud,  and  by  which  the  wrong-doing  appears, 
without  much  necessity  for  characterizing  it  as  such."  7  It  should 
usually  state  facts  and  not  evidence.  The  English  rule  was  that 
no  admissions,  whether  written  or  oral,  could  be  given  in  evidence 
unless  they  had  been  specifically  charged  in  the  bill.8  In  this 
country,  however,  though  the  point  has  never  been  decided 
by  the  Supreme  Court,  we  have  the  great  authority  of  Judge 
Story,  at  circuit,  holding  that  such  a  practice  is  unnecessary.9 
So,  according  to  Professor  Langdell,  "  when  a  bill  charges  a 
defendant  with  having  had  notice,  or  with  having  committed  a 
fraud,  or  with  insanity  or  drunkenness,  or  lewdness  or  miscon- 
duct in  office,  if  the  plaintiff  intends  to  prove  specific  acts  of 
notice,  or  of  fraud,  insanity,  drunkenness,  lewdness,  or  miscon- 
duct in  office,  it  seems  that  such  acts  should  be  specifically 
charged  in  the  bill.  But  this  view  is  not  fully  supported  by 
authority.  It  may  also  be  stated  generally,  that  whenever  the 
plaintiff  has  evidence  which  is  likely  to  take  the  defendant  by 
surprise,  it  is  the  safer  course  to  indicate  its  nature  in  the  bill, 
rather  than  to  run  the  risk  of  having  it  objected  to  at  the  hear- 
ing." 10  But  as  the  cases  upon  the  authority  of  which  he  made 
these  statements  were  decided  when  each  party's  evidence  was 
unknown  to  the  other  until  the  hearing, —  a  method  of  taking 
testimony  long  since  disused,11  —  it  is  not  likely  that  the  courts 
would  be  as  strict  now  as  formerly  in  requiring  such  evidence  to 
be  pleaded.12 

§  70.  Inconsistency  and  Bills  with  a  Double  Aspect.  —  A  bill 
must  not  state  two  inconsistent  states  of  fact  and  ask  relief  in 
the  alternative.     But  it  may  state  the  facts  and  ask  relief  in  the 

7  Lafayette  Co.  v.  Neely,  21  Fed.  R.  i°  Langdell's  Eq.  PI.  §  60.     See  Wes- 

738.  ton   v.   Empire  Assurance    Corporation, 

«  Hall  v.  Maltby,  6  Price,  240 ;  Evans  L.  R.  6  Eq.  23 ;  Clark  v.  Periam,  2  Atk. 

v.  Bicknell,  6  Ves.  183;  Austin  v.  Cham-  337  ;  Shepherd  v.  Morris,  4  Beav.  252. 

bers,  6  CI.   &  Fin.   38;  Story's  Eq.  PI.  n  See  Amendments  to  Rule  67,  and 

265.  Chapter  on  Evidence. 

9  Smith  v.  Burnham,  2  Sumner  C.  C.  n  See  Smith  v.  Burnham,  2  Sumner 

612 ;  Jenkins  v.  Eldredge,  3  Story  C.  C.  C.  C.  612,  622;  Story's  Eq  PI.  §  265  a. 
181,  283,  284;  Story's  Eq.  PI.  §  265. 


118  BILLS.  [CHAP.  IV. 

alternative  according  to  the  conclusion  of  law  that  the  court  may 
draw  from  them,  so  that  if  one  kind  of  relief  sought  be  denied 
another  may  be  granted ;  and  it  may  state  facts  of  a  different 
nature  not  inconsistent  with  each  other,  and  equally  supporting 
the  prayer  for  relief.  In  both  of  these  cases  a  bill  is  said  to  have 
"'  a  double  aspect."  1  Thus,  a  bill  may  state  facts  constituting  an 
attempt  to  form  a  new  corporation  by  the  consolidation  of  two 
already  existing,  and  pray  that,  if  the  new  corporation  have  a 
legal  existence,  the  plaintiff  may  be  declared  entitled  to  a  certain 
number  of  shares  therein,  otherwise  to  a  corresponding  interest 
in  the  stock  of  one  of  the  old  corporations.2  The  complainant 
may  seek  to  quiet  the  title  to  lands,  claiming  either  as  devisee 
or  as  heir-at-law.3  A  bill  may  contain  a  prayer  that  an  agree- 
ment be  either  set  aside  as  obtained  by  fraud,  or  else  specifically 
enforced.4  A  bill  was  sustained  when  filed  by  one  partner 
against  another,  praying  for  specific  performance  of  a  contract 
for  the  sale  of  land,  or  else  for  an  account  of  the  partnership 
debts,  and  a  charge  of  their  amount  upon  the  land  as  belonging 
to  the  assets  of  the  firm.5  If  the  plaintiff  wish  to  set  aside  a 
deed  on  account  of  fraud,  imposition,  and  undue  influence,  he 
may  allege  both  that  the  maker  was  insane  and  that  he  had  a 
great  imbecility  of  mind.6  But  if  he  allege  that  a  decree  which 
he  wishes  to  set  aside  was  obtained  either  by  mistake  of  all  the 
parties,  or  by  deception  practised  upon  himself,  or  by  collusion 
of  the  defendant  with  third  parties,  the  bill  will  be  demurrable 
for  indefiniteness.7  In  a  recent  case  the  court  said :  "  To  allege 
that  a  sale  is  simulated,  and  if  not  simulated  is  fraudulent,  mean- 
ing thereby  it  is  a  sham  sale,  and  if  not  a  sham  then  a  real  sale, 
but  fraudulent,  may  be  consistent,  but  it  is  not  certain  ;  and  cer- 
tainty is  a  requisite  in  equity  pleading  as  well  as  consistency. 
It  seems  to  me  that,  if  there  is  doubt  as  to  the  nature  of  the 
transaction,  the  creditor,  who  has  '  to  strike  in  the  dark,'  should 
charge  a  fraudulent  simulation,  and  on  discovery  amend  if  neces- 

§  70.  i  Shields  v.  Barrow,  17  Howard,  Haute  &  I.  R.  Co.,  33  Fed.  R.  440,  448, 

130,  144;    Story's  Eq.  PI.  §§  426,  note,  449. 
254.  5  Hoxie  v.  Carr,  1  Sumner,  173. 

2  Kilgour  v.  New  Orleans   Gas-Light         6  Story's   Eq.    PI.  §   254;   Bennet    v. 
Co.,  2  Woods,  144,  148.  Vade,   2   Atk.   325;    Colton   v.   Ross,   2 

3  Gaines  v.  Chew,  2  How.  619,  643.  Paige  (N.  Y.),  396;  Lloyd  v.  Brewster, 

4  Hardin  v.  Boyd,  113  U.  S.  756.     But  4  Paige  (N.  Y),  537. 

see  Shields  v.  Barrow,  17  How.  130,  143;  "  Brooks  v.  OHara,  8  Fed.  R.  529; 
St.  Louis,  V.  &  T.  H.  R.  Co.  v.  Terre     s.  c.  2  McCrary,  644. 


§  71.]  MULTIFARIOUSNESS   IN   GENERAL.  119 

sary."8  A  bill  was  sustained  where  the  complainant  sought 
specific  performance  of  an  agreement  by  his  partner  to  transfer 
to  him  the  latter's  interest  in  certain  land,  or  in  the  alternative 
to  have  the  land  charged  with  the  debts  of  the  copartnership.9 
But  it  was  held  in  England  that  a  bill  may  not  pray  relief 
primarily  against  one  of  two  defendants,  and,  in  case  the  court 
should  hold  him  free  from  liability,  then  against  the  other.10 
A  bill  is  bad  when  it  contains  two  alternative  claims  each 
belonging  to  several  persons,  one  of  whom  has  no  interest  in 
one  claim,  and  others  of  whom  have  no  interest  in  the  other 
claim.11  "  When  the  pleadings  are  so  framed  as  to  rest  the  claim 
for  relief  solely  on  the  ground  of  fraud,  it  is  not  open  to  the 
plaintiff,  if  he  fails  in  establishing  the  fraud,  to  pick  out  from 
the  allegations  of  the  bill  facts  which  might,  if  not  put  forward 
as  proofs  of  fraud,  have  yet  warranted  the  plaintiff  in  asking  for 
relief.  A  defendant  in  answering  a  case  not  founded  on  fraud  is 
not  bound  to  do  more  than  answer  the  case  in  the  mode  in  which 
it  is  put  forward.  If,  indeed,  relief  is  asked  alternatively,  either 
on  the  ground  of  fraud,  or,  failing  on  that  ground,  on  some  other 
equity,  a  plaintiff  failing  on  the  first  may  succeed  on  the  latter 
alternative.  But  then  the  attention  of  the  defendant  has  been 
distinctly  called  to  it,  and  he  has  been  called  upon  to  answer  the 
case  according  to  both  alternatives.  It  is  the  duty  of  the  judge 
to  determine  whether  the  two  are  so  interwoven  with  each  other 
that,  on  the  failure  of  proof  of  fraud,  it  is  impossible  to  treat  the 
facts  as  separate  allegations,  justifying  a  separate  mode  of  deal- 
ing with  them."  12 

§  71.  Multifariousness  in  General.  —  A  bill  must  not  be  multi- 
farious. Multifariousness  consists  in  the  joinder  of  two  or  more 
distinct  and  unconnected  grounds  for  equitable  relief,  each  ot 
which  might  be  the  foundation  for  a  separate  bill.  This  may 
occur  in  three  ways,  —  by  a  misjoinder  of  plaintiffs,  by  a  mis- 
joinder of  defendants,  and  by  a  misjoinder  of  grounds  for  equit- 

8  Pardee,  J.,  in  Socola  v.  Grant,  15  56;  Britton  v.  Brewster,  2  Fed.  R.  1(10; 
Fed.  R.  487,  489.  French  v.  Shoemaker,  14  Wall.  314,  335; 

9  Hoxie  v.  Carr,  1  Sumner,  173.  Fisher  v.  Boody,  1  Curt.  206 ;  Hoyt  v. 

10  Clark  v.  Lord  Rivers,  L.  R.  5  Eq.  91,  Hoyt,  27  N.  J.  Eq.  309  ;  Wilde  v.  Gibson, 
97.  But  see  Kilgour  v.  New  Orleans  1  H.  of  L.  Cases,  605 ;  Hickson  v.  Lom- 
Gas  Light  Co.,  2  Woods,  144,  148.  bard,  L.  R.  1  H.  of  L.  326;  Thomson  v. 

11  Stebbins  v.  St.  Anne,  116  U.  S.  386.  Eastwood,    L.    R.    2  App.    Cases,    215 ; 

12  Foster's  Lectures  on  Equity  Plead-  Price  v.  Berrington,  3  Macn.  &  G.  486, 
ing,  MS. ;  Eyre  v.  Potter,   15  How.  42,  498. 


120  BILLS.  [CHAP.  IV. 

able  relief  held  by  and  against  the  same  parties.1  "  To  lay  down 
any  rule  applicable  universally,  or  to  say  what  constitutes  multi- 
fariousness as  an  abstract  proposition,  is,  upon  the  authorities, 
utterly  impossible.  The  cases  upon  the  subject  are  extremely 
various,  and  the  court  in  deciding  them  seems  to  have  considered 
what  was  convenient  in  particular  circumstances,  rather  than  to 
have  attempted  to  lay  down  any  absolute  rule."2  "The  only 
way  of  reconciling  the  authorities  upon  the  subject  is  by  advert- 
ing to  the  fact  that,  although  the  books  speak  generally  of  de- 
murrers for  multifariousness,  yet  in  truth  such  demurrers  may 
be  divided  into  two  distinct  kinds.  Frequently  the  objection 
raised,  though  termed  multifariousness,  is  in  fact  more  properly 
misjoinder ;  that  is  to  say,  the  cases  or  claims  united  in  the  bill 
are  of  so  different  a  character  that  the  court  will  not  permit 
them  to  be  litigated  in  one  record.  It  may  be  that  the  plaintiffs 
and  defendants  are  parties  to  the  whole  of  the  transactions  which 
form  the  subject  of  the  suit,  and  nevertheless  these  transactions 
may  be  so  dissimilar  that  the  court  will  not  allow  them  to  be 
joined  together,  but  will  require  distinct  records.  But  what  is 
more  familiarly  understood  by  the  term  '  multifariousness,'  as 
applied  to  a  bill,  is  where  a  party  is  able  to  say  he  is  brought  as 
a  defendant  upon  a  record,  with  a  large  portion  of  which,  and 
of  the  case  made  by  which,  he  has  no  connection  whatever."3 
There  is,  however,  little  practical  good  to  be  obtained  from  a 
maintenance  of  this  distinction  except  as  a  means  of  elucidating 
some  of  the  expressions  in  the  earlier  authorities.4  "  The  de- 
cisions on  this  subject  are  contradictory  and  unsatisfactory. 
The  common-sense  rule  in  such  cases  is  that  an  individual  shall 
not  be  called  to  maintain  his  title  or  shall  not  assert  it,  in  con- 
nection with  others  to  which  it  has  no  analogy,  and  in  the 
investigation  of  which  the  costs  and  complexity  of  the  case  will 
be  increased."5 

§  72.    Multifariousness  by  Misjoinder  of  Plaintiffs.  —  No  persons 
can  unite  as  complainants  in  a  bill  in  equity  unless  they  have  a 

§  71.  *  Calvert   on   Parties,  Book  I.         *  See  Calvert  on  Parties,  Book  I.  ch. 

ch.  vii.  vii. 

2  Lord    Cottenham    in    Campbell    v.         6  Mr.  Justice  McLean  in   Turner  v. 
Mackay,  1  M.  &  Cr.  603,  618.  American   Baptist   Missionary   Union,  5 

3  Lord    Cottenham    in    Campbell      .  McLean,  344,  349, 
Mackay,  1  M.  &  Cr.  603,  618.    Approved 

in  Shields  v.  Thomas,  18  How.  253,  259. 


§  72.]        MULTIFARIOUSNESS   BY   MISJOINDER    OF   PLAINTIFFS.  121 

joint  or  common  interest  in  obtaining  the  same  relief.1  Thus  if 
one  of  them  has  no  interest  in  the  relief  claimed,  the  bill  is 
demurrable.2  Those  who  claim  the  return  of  money  paid  by 
them  severally  on  distinct  promissory  notes  cannot  join  their 
claims  in  the  same  bill  ;  3  nor  can  several  creditors  claiming  un- 
der several  obligations  unite  in  a  suit  to  attach  the  debts  of  an 
absent  debtor.4  But  in  a  bill  to  compel  specific  performance  of  a 
decree  in  a  former  suit,  all  the  complainants  in  the  first  suit  may 
join  as  plaintiffs,  though  the  decree  sought  to  be  enforced  orders 
the  payment  of  specific  sums  severally  to  each  of  them.5  Plain- 
tiffs with  conflicting  interests  cannot  so  join.6  Such  are,  in  a  suit 
for  the  construction  of  a  will,  persons,  each  of  whom  is  inter- 
ested in  having  a  different  construction  put  upon  it.7  Nor  can 
two  join  in  a  bill  to  set  aside  a  fraudulent  conveyance  of  land, 
of  whom  one  claims  the  land  as  a  creditor  of  the  person  who  has 
made  the  conveyance,  and  the  other  as  the  purchaser  of  the  land 
upon  a  sheriff's  sale  to  satisfy  a  judgment  held  by  him.8  But  the 
interests  of  the  complainants  need  not  be  coextensive.  Thus,  a 
tenant  for  life  and  the  remainder-men  of  an  estate,  either  legal 
or  equitable,  may  join  in  a  suit  to  protect  the  estate.9  Although 
usually  there  must  be  some  privity  between  the  complainants  in 
a  bill,  yet  in  certain  cases  those  between  whom  there  is  no  priv- 
ity are  allowed  to  sue  together  when  they  seek  to  avert  an  injury 
which  will  affect  them  all  alike.  Thus,  several  tenants  or  par- 
ishioners may  unite  in  a  bill  of  peace  seeking  to  dispose  of  a  dis- 
puted right  claimed  against  them  by  the  lord  of  the  manor  10  or 
the  parson  of  the  parish.11  And  the  owners  of  several  lots  of 
land  claiming  under  a  common  source  of  title  may  unite  in  a 
bill  of  peace  against  several  other  claimants  to  the  same  lots, 
who  also  rely  upon  a  common  source  of  title  adverse  to  that 

§  72.  i  Story's  Eq.  PI.  §  279 ;  Calvert  C.  C.  432 ;  Bell  v.  Cureton,  2  M.  &  K. 

on  Parties  (2d  ed.),  105,  110.  503. 

»  Walker  v.  Powers,  104  U.   S.  245,  7  Parsons  v.  Lyman,  4  Blatchf.  C.  C. 

249 ;  Doggett  v.  Railroad  Co.,  99  U.  S.  432 ;  Saumarez  v.  Saumarez,  4  M.  &  Cr. 

72.  331,  336. 

8  Yeaton  v.  Lenox,  8  Pet.  123.  8  Walker  v.  Powers,  104  U.  S.  245. 

4  Yeaton  v.  Lenox,  8  Pet.  123.     But  9  Story's  Eq.  PI.  §  279  a ;  Buckeridge 

see  Norrls   v.   Hassler,  22   Fed.  R.  401;  v.  Glasse,  1  Cr.  &  Pliill.  126;  Calvert  on 

Langdon  v.  Branch,  37  Fed.  R,  449.  Parties  (2d  ed.),  99. 

6  Shields  v.  Thomas,  18  How.  253.  10  Anon.,  1  Chan.  Cas.  269 ;  Smith  v. 

6  Walker  v.  Powers,  104  U.  S.  245;  Earl  Brownlow,  L.  R.  9  Eq.  241. 

Saumarez  v.  Saumarez,  4  Mylne  &  Cr.  "  Rudge  v.  Hopkins,  2  Eq.  Cas.  Abr. 

331,  336 ;  Parsons  v.  Lyman,  4  Blatchf.  170 


122  BILLS.  [CHAP.  IV. 

of  the  complainants.12  It  has  been  said  that  the  owners  of 
adjacent  property  may  maintain  a  bill  in  equity  to  enjoin  a  de- 
fendant from  erecting  a  livery  stable  or  other  nuisance  in  their 
vicinity.13  But  another  case  holds  that  different  persons,  each 
of  whom  will  suffer  a  distinct  injury  from  the  levy  of  a  tax, 
cannot  unite  in  a  bill  to  enjoin  its  levy  on  account  of  its  alleged 
unconstitutionality.14 

§  73.  Multifariousness  by  Misjoinder  of  Defendants.  —  No  per- 
sons can  be  joined  as  defendants  to  a  bill  in  equity  who  have  not 
a  joint  or  common  interest  in  opposing  the  relief  prayed  for.1 
Different  relief  may,  however,  be  obtained  against  different  de- 
fendants when  the  bill  seeks  to  prevent  or  annul  the  effect  of  acts 
in  pursuance  of  a  common  scheme,  or  so  connected  with  each 
other  as  to  form  part  of  the  same  transaction.2  The  rule  was 
thus  stated  by  Sir  John  Leach :  "  In  order  to  determine  whether 
a  suit  is  multifarious,  or  in  other  words,  contains  distinct  matters, 
the  inquiry  is  not,  as  this  defendant  supposes,  whether  each 
defendant  is  connected  with  every  branch  of  the  cause,  but 
whether  the  plaintiff's  bill  seeks  relief  in  respect  of  matters  which 
are  in  their  nature  separate  and  distinct.  If  the  object  of  the 
suit  be  single,  but  it  happens  that  different  persons  have  separate 
interests  in  distinct  questions  which  arise  out  of  that  single 
object,  it  necessarily  follows  that  such  different  persons  must  be 
brought  before  the  court,  in  order  that  the  suit  may  conclude 
the  whole  object." 3  "  The  entirety  of  the  case  against  one  de- 
fendant constitutes  the  connecting  link."  4  But  a  bill  is  multi- 
farious when  the  charge  against  one  defendant  is  in  no  way 
connected  with  those  against  other  defendants.5  A  bill  is  multi- 
farious, which  seeks  both  to  foreclose  a  mortgage  and  to  restrain 
another  defendant  from  asserting  a  claim  of  title  adverse  to  both 

12  Crews  v.  Burcham,  1  Black,  352.  vii.  ;    Manners    v.    Rowley,   10   Simons, 

13  Flint  v.  Russell,  5  Dill.  151.      See    470. 

also     Parker    v.    Nightingale,    6     Allen         3  Salvidge  v.  Hyde,  5  Maddock,  138, 

(Mass.),  341.    But  contra,  Hudson  v.  Mad-  146. 

dison,  12  Simons,  416.  *  Calvert    on    Parties    (2d    ed.),   98  ; 

14  Cutting  t;.  Gilbert,  5  Blatchf.  C.  C.  quoting  Sir  John  Leach  in  Turner  v. 
259.  See,  however,  Central  Pacific  R.  R.  Robinson,  1  Sim.  &  S.  313 ;  and  Lord  Cot- 
v.  Dyer,  1  Saw.  641 ;  Union  Pacific  R.  R.  tenham  in  Attorney-General  v.  Corpora- 
ls. McShane,  3  Dill.  303.  tion  of  Poole,  4  M.  &  Cr.  17,  31. 

§73.   !  Calvert  on  Parties,  Book  I.  ch.         5  Wood  v.  Dummer,  3   Mason,  308; 

vii.  ;  United  States  v.  Alexander,  4  Cranch  West   v.   Randall,   2    Mason,    181,   200 ; 

C.  C.  311.  Lewarne  v.  Mexican  International  Imp. 

2  Calvert  on  Parties,  Book  I.  Chap.  Co.,  38  Fed.  R.  629. 


§  73.]      MULTIFARIOUSNESS   BY   MISJOINDER    OF   DEFENDANTS.  123 

mortgagee  and  mortgagor ; 6  and  a  bill  to  obtain  a  transfer  ot 
land  from  one  defendant,  and  to  restrain  another  from  asserting  a 
conflicting  claim  to  the  same  ; 7  and  a  bill  by  an  executor  to  set- 
tle the  conflicting  controversies  between  himself,  the  heirs  of  his 
testatrix,  the  heirs  of  her  husband,  both  of  whom  dispute  be- 
quests under  her  will,  and  one  claiming  to  be  a  creditor  of  her 
estate.8  An  English  case  holds  that  different  violators  of  the 
same  copyright  cannot  be  enjoined  by  the  same  bill  when  their 
acts  of  piracy  were  not  performed  in  confederacy  with  each 
other.9  But  this  case  has  been  doubted  by  Judge  Story,10  and 
distinguished  by  Chancellor  Kent ; u  and  the  courts  might  per- 
haps refuse  to  follow  it  here.12  Persons  who  are  acting  in  con- 
cert as  employees  of  the  same  corporation  in  the  infringement  of 
a  patent  may  be  joined  as  defendants  to  a  bill.13  A  bill  filed  by 
an  assignee  in  bankruptcy  against  all  the  incumbrancers  of  his 
assignor's  estate,  some  but  not  all  of  whom  had  liens  upon  the 
same  property,  to  set  aside  their  liens  as  fraudulent,  and  to  have 
the  property  sold  for  the  common  benefit  of  the  creditors,  was 
held  not  multifarious.14  A  bill  filed  by  the  beneficiary  under 
several  deeds  of  trust,  some  upon  different  parts  of  the  same 
property,  one  covering  the  entire  property,  against  the  trustees, 
the  trustor,  and  the  different  persons  claiming  liens  upon  the 
property,  was  held  not  multifarious.15  A  bill  was  sustained  when 
filed  by  one  of  the  next  of  kin  against  both  an  administrator  and 
his  sureties,  to  obtain  the  plaintiff's  share  of  the  estate.16  A  cred- 
itor's bill  may  be  filed  against  the  members  of  two  different  firms 
when  some  are  members  of  both.17  A  bill  may  be  filed  by  the 
holder  of  a  bond  secured  by  a  lien  upon  the  property  of  a  cor- 
poration against  both  the  corporation  and  its  stockholders,  at 
the  same  time  to  foreclose  his  lien,  and  compel  the  stockholders 
to  pay  so  much  of  the  balance  of  their  subscriptions  to  the  stock 
of  the  corporation  as  will  suffice  for  the  payment  of  the  deficiency 

6  Dial  v.  Reynolds,  96  U.  S.  340.  14  McLean  v.  Lafayette  Bank,  3  Mc- 

7  Copen  v.  Flesher,  1  Bond,  440.  Lean,  415.     See  also  Jones  v.  Slausson, 

8  Haines  v.  Carpenter,  1  Woods,  262.  33  Fed.  R.  632 ;  Potts  v.  Hahn,  32  Fed. 
8  Dilly  v.  Doig,  2  Ves.  Jr.  486.  R.  660. 

10  Story's  Eq.  PI.  §§  277,  278.  15  Grant  v.  Phoenix  Life  Ins.  Co.,  121 

11  Brinkerhoff    v.    Brown,    6    J.    Ch.     U.  S.  105. 

(N.  Y.)  139,  at  p.  155.  1B  Payne  v.  Hook,  7  Wall.  425. 

12  See   Fox  well   v.   Webster,    10    Jur.        17  Nelson  v.  Hill,  5  How.  127.     See  also 
n.  a.  137.  Oliver  v.   Piatt,  3  How.  333.     But  see 

18  Poppenhusen    v.  Falke,    4    Blatch.     Griffin  v.  Merrill,  10  Md.  304. 
C.  C.  493. 


124  BILLS.  [chap.  IV. 

after  the  foreclosure  sale.18  A  bill  of  peace  may  be  filed  to  dis- 
pose of  the  claims  of  a  number  of  defendants,  which  all  depend 
on  the  determination  of  a  single  question  of  fact  or  law.19  Thus,  a 
bill  by  a  parson  or  lord  of  a  manor  to  establish  a  claim  against 
all  of  his  parishioners20  or  tenants  ; 21  a  bill  by  the  owner  of  a  fish- 
ery to  establish  his  claim  against  a  number  of  riparian  owners  ;  ^ 
a  bill  hy  a  city  to  establish  its  claim  to  a  tax  against  several  of 
the  class  liable  to  it ; 23  a  bill  by  a  railroad  company  to  restrain 
the  tax-collectors  of  different  counties  from  le\wing  taxes  sepa- 
rately assessed,  but  part  of  each  of  which  is  to  be  paid  to  the  State, 
and  the  validity  of  all  of  which  depends  upon  the  construction  of 
a  single  statute  j24  by  a  railroad  company  to  quiet  its  title  against 
a  number  of  claimants  to  land  in  severalty,  the  validity  of  the 
separate  title  of  each  of  whom  depends  upon  the  construction  of 
one  statute  ;  ^  and  by  an  heir-at-law  against  the  executors  of  an 
invalid  will,  and  all  who  have  purchased  from  them  the  land 
belonging  to  the  ancestor's  estate.26 

§  74.  Multifariousness  without  Misjoinder  of  Parties.  —  Multi- 
fariousness may  also  exist  without  a  misjoinder  of  parties,  when 
two  or  more  distinct  and  unconnected  grounds  of  equitable  relief 
are  joined  in  the  same  bill.  Thus,  a  bill  is  multifarious  when 
filed  by  the  receiver  against  the  directors  of  a  national  bank  to 
recover  claims  for  losses  suffered  by  the  corporation  by  reason  of 
the  directors'  negligence,  and  claims  for  losses  suffered  by  the 
stockholders  by  reason  of  having  been  induced  to  subscribe  for 
new  shares  by  misrepresentations  of  the  directors.1  So  is  a  bill 
which  seeks  an  account  of  a  trust  held  by  all  of  the  defendants, 
and  also  seeks  to  set  aside  the  effects  of  a  distinct  and  indepen- 
dent fraud  upon  the  trustor  committed  by  one  only  of  them.2  So 
is  a  bill  by  one  heir-at-law  of  a  deceased  married  woman  against 
her  husband  and  the  other  heirs,  to  set  aside  both  her  marriage 

18  Manufacturing  Company  v.  Bradley,  &  City  of  London  v.  Perkins,  3  Bro. 
105  U.  S.  175.  Pari.  Cas.  602. 

19  Gaines  v.  Chew,  2  How.  619;  U.  S.  **  Union   Pacific   R.   R.   v.   McShane, 
v.  Curtner,  26  Fed.  R.  296,  298;  Hyman  3  Dill.  303. 

v.  Wheeler,  33  Fed.  R.  329.  *  Central  Pacific  R.  R.  Co.  v.  Dyer, 

20  Brown  v.  Vermuden,  1  Chan.  Cas.     1  Saw.  641. 

272.  20  Gaines  v.  Chew,  2  How.  619. 

21  Conyers    v.   Lord    Ahergavenny,  1  §  74.   J  Price  v.  Coleman,  21  Fed.  R. 
Atk.  285.                                                           357.     See  also  Lewarne  v.  Mexican  Inter- 

'--  Mayor  of  York  v.  Pilkington,  1  Atk.     national  Imp.  Co.,  38  Fed.  R.  629. 
284.  2  West  v.  Randall,  2  Mason,  181.     But 

see  Mills  v.  Hurd,  32  Fed.  R.  127. 


§  74.]      MULTIFARIOUSNESS   WITHOUT   MISJOINDER   OF    PARTIES.      125 

settlement  and  her  will.  For  "  in  these  two  matters  the  necessary- 
parties  to  the  suit  may  be  the  same,  but  their  interests  and  atti- 
tude are  decidedly  at  variance."  3  A  bill  to  determine  conflict- 
ing claims  to  land,  and  also  asking  for  a  partition  of  the  land  after 
the  title  should  be  determined,  has  been  held  multifarious  ; 4  and  so 
has  a  bill  asking  for  a  discovery  by  the  defendant  of  an  applica- 
tion for  a  policy  of  life  insurance,  and  for  the  specific  performance 
of  an  agreement  to  issue  the  policy  sought  in  the  application.5  It 
has  also  been  held  multifarious  to  sue  in  one  bill  for  an  injunction 
against  the  violation  of  several  distinct  patents ; 6  but  not  if  the 
infringement  is  made  by  the  use  or  manufacture  of  a  single  ma- 
chine.7 In  the  latter  case  the  bill  should  so  allege.  It  has  been 
said  that  the  complainant  "  should  aver  that  said  inventions  are 
capable  of  conjoint  as  well  as  separate  use,  and  are  so  used  by 
the  defendants."  8  It  is  not  multifarious  to  seek  in  the  same  bill 
to  reform  a  written  agreement  on  account  of  a  mistake,  and  to 
enforce  its  performance  as  reformed  ; 9  nor  to  seek  to  set  aside  and 
cancel  an  insurance  policy  and  enjoin  the  further  prosecution  of 
an  action  to  recover  premiums  paid  upon  it ; 10  nor  to  compel  the 
issue  of  such  a  policy,  and  at  the  same  time  collect  its  amount.11 
Nor  is  a  bill  against  a  single  defendant  to  collect  assessments  on 
account  of  the  same  improvement  made  against  several  different 
lots  owned  by  him  which  do  not  adjoin  each  other.12  Nor  a  bill 
filed  by  one  railway  company  against  another  to  compel  an  ac- 
counting as  to  the  disposition  and  proceeds  of  bonds  issued  by  the 
former  to  the  latter,  and  the  payment  of  the  damages  resulting 
from  the  foreclosure  of  the  mortgage  given  to  secure  those  bonds, 
and  to  recover  the  rents  due  under  a  lease  of  the  plaintiff's  road ; 
when  the  execution  of  this  lease  and  the  issue  of  these  bonds 
were  parts  of  the  same  transaction.13     Nor  a  bill  by  the  United 

3  McDonnell  v.  Eaton,  18  Fed.  R.  710.  8  Gamewell  Fire  Alarm  Telegraph  Co. 

*  Chapin  v.  Sears,  18  Fed.  R.  814.  v.  City  of  Chillicothe,  7  Fed.  R.  351 ;  Nel- 

6  Markey  v.  Mutual  Benefit  Life  Ins.  lis  v.  McLanahan,  6  Fisher's  Pat.   Cas. 
Co.,  6  Ins.  L.  J.  537.  286. 

«  Hayes  v.  Dayton,   8  Fed.   R.   702;  9  Gillespie  v.  Moon,  2  J.  Ch.  (N.  Y.) 

Shickle  v.  South  St.  Louis  Foundry  Co.,  585. 

22  Fed.  R.  105.  io  Equitable    Life    Assurance  Soc.  v. 

7  Nourse  v.  Allen,  4  Blatchf .  C.  C.  376 ;  Patterson,  1  Fed.  R.  126. 

Perry  v.  Corning,  7  Blatchf.  C.  C.  195 ;  "  Hebert  v.  Mutual  Life  Ins.  Co.,  12 
Case  v.  Redfield,  4  McLean,  526  ;  Game-  Fed.  R.  807 ;   Brugger   v.  State  Invest- 
well  Fire  Alarm  Tel.  Co.  v.  City  of  Chilli-  ment  Ins.  Co.,  5  Saw.  304. 
cothe,  7  Fed  R.  351;  Nellis  v.  McLanahan,  12  Fitch  v.  Creighton,  24  How.  159. 
6  Fisher's  Pat.  Cas.  286.   See  U.  S.  v.  Am.  13  Pacific  R.  R.  (of  Missouri)  v.  Atlan- 
Bell  Telephone  Co.,  128  U.  S.  315.  tic  &  Pacific  R.  R.  Co.,  20  Fed.  R.  277. 


126  BILLS.  [CHAP.  IV. 

States  to  set  aside  a  land-patent  for  fraud,  obtain  an  accounting 
of  the  rents  and  profits  of  the  land,  and  re^  ver  damage  for 
waste.14 

§  75.  Objections  for  Multifariousness.  —  An  objection  to  a  bill 
as  multifarious  should  be  raised  by  demurrer.1  If  not  apparent 
upon  the  face  of  the  bill,  it  is  very  doubtful  whether  it  can  be 
raised  by  plea  or  answer.2  It  can  never  be  taken  for  the  first 
time  at  the  hearing3  or  upon  appeal  ;4  but  the  court  may,  of  its 
own  motion,  dismiss  a  bill  for  multifariousness  at  any  time  ; 5  and 
perhaps  the  objection  that  the  rights  of  the  complainants  are  in- 
consistent can  be  raised  at  the  hearing.6  It  has  been  said  that 
the  objection  cannot  be  taken  by  a  defendant  who  is  not  injured 
by  it."  The  misjoinder  of  a  defendant  against  whom  the  bill 
states  no  ground  for  relief  is  not  a  cause  for  a  demurrer  by  the 
other  defendants.8  Multifariousness  as  to  subjects  or  parties 
does  not  render  a  decree  void,  so  that  it  can  be  treated  as  a 
nullity  in  a  collateral  action.9  It  has  been  held  in  other  courts, 
that  a  bill  is  not  multifarious  which  joins  an  insufficient  with  a 
good  case  for  equitable  relief,  when  there  is  no  misjoinder  of 
parties,  and  that  the  proper  course  of  the  defendant  is  to  demur 
to  so  much  of  the  bill  as  is  insufficient ; 10  but  a  bill  is  multifarious 
which  joins  two  inconsistent  complaints  by  different  plaintiffs, 
although  the  case  shown  by  the  principal  plaintiff  is  insufficient.11 
It  is  within  the  constitutional  power  of  Congress  to  pass  a  law 
allowing,  in  a  single  specified  suit  against  a  corporation  chartered 
by  it,  matters  and  defendants  to  be  joined  in  a  manner  that  would 
otherwise  constitute  multifariousness.12     When  an  objection  for 

14  United  States  v.  Pratt  Coal  &  Coke  6  Davies  v.  Quaterman,  4  Y.  &  Coll. 

Co.,  18  Fed.  R.  708.  257. 

§  75.   1  Nelson  v.  Hill,  5  How.  127.  7  Buerk  v.  Imhaeuser,  8  Fed.  R.  457. 

2  Benson    v.   Hadfield,    4    Hare,  32 ;  8  Warthen   v.   Brantley,    5  Ga.   571 ; 

Greenwood  v.  Churchill,  1  M.  &  K.  559 ;  Whitbeck  v.  Edgar,  2  Barb.  Ch.  (N.  Y.) 

Gibbs  v.  Clagett,  2  Gill  &  J.  (Md.)  14;  106;    Miller  v.  Jamison,  9  C.  E.  Green 

Story's  Eq.  PI.  §  747  ;  Beames  on  Pleas,  (N.  J.),  41 ;  Story's  Eq.  PI.  §  544. 

157   158.  9  Hefner    v.  Northwestern    Life   Ins. 

a  Greenwood  v.  Churchill,  1  M.  &  K.  Co.,  123  U.  S.  747. 

559;  Oliver  v.  Piatt,  3  How.   333,  412;  10  McCabe  v.  Bellows,  1  Allen  (Mass), 

Nelson  v.  Hill,  5  How.  127 ;  Bowman's  269 ;    Snavely   v.   Harkrader,   29   Gratt. 

Devisees  v.  Wathen,  2  McLean,  370.  (Va.)  112;   Story's   Eq.  PI,  §  283.     See 

4  Oliver  v.  Piatt,  3   How.  333,   412 ;  Brown  v.  Guarantee  Trust  Co.,  128  U.  S. 
Barney  v.  Latham,  103  U.  S.  205,  215.  403. 

5  Oliver  ».  Piatt,  3    How.  333,  412  ;  "  Walker  v.  Powers,   104  U.   S.  245, 
Nelson  ».Hill,   5   How.  127,132;  Green-  249. 

wood  v.  Churchill,  1  M.  &  K.  559  ;  Ohio        12  United  States  v.  Union  Pacific  R.  R., 
v.  Ellis,  10  Ohio,  456.  98  U.  S.  569. 


§  76.]      SPECIAL    PROVISIONS   OF   EQUITY   RULES   AND   PRACTICE.      127 

multifariousness  is  sustained,  the  complainant  will  always  be  al- 
lowed, if  he  asks  leave  to  do  so,  to  amend  upon  payment  of  costs, 
unless  his  bill  be  otherwise  fatally  defective.13  The  cases  show 
a  tendency  towards  holding  that  multifariousness  depends  so 
much  upon  the  discretion  of  the  courts  of  first  instance,  that 
a  decision  overruling  an  objection  upon  that  ground  would 
not  be  reviewed  upon  appeal.14  In  no  case  has  the  Supreme 
Court  of  the  United  States  reversed  a  decree  on  account  of 
multifariousness  in  the  bill.  In  general,  it  may  be  remarked 
that  multifariousness  is  an  objection  much  more  often  taken 
than  sustained. 

§  76.  Special  Provisions  of  the  Federal  Equity  Rules  and  Prac- 
tice. —  "  The  plaintiff  may  in  the  stating  or  narrative  part  of  his 
bill,  state,  and  avoid  by  counter-averments  at  his  option,  any 
matter  or  thing  which  he  supposes  will  be  insisted  upon  by  the 
defendant  by  way  of  defense  or  excuse  to  the  case  made  by  the 
plaintiff  for  relief."  1  Such  matter  was  formerly  included  in  a 
separate  part  called  the  charging  part  of  the  bill,  which,  how- 
ever, was  never  indispensable.2  It  is  often  important  for  the 
plaintiff  to  thus  meet  a  defence  which  he  anticipates.  For  as 
special  replications  are  not  allowed,  he  may  thus  save  the  delay 
of  an  enforced  amendment  of  his  bill,  in  order  to  plead  new  mat- 
ter as  a  reply  to  a  defence  in  the  answer.  "If  any  persons, 
other  than  those  named  as  defendants  in  the  bill,  shall  appear  to 
be  necessary  or  proper  parties  thereto,  the  bill  shall  aver  the  rea- 
son why  they  are  not  made  parties,  by  showing  them  to  be 
without  the  jurisdiction  of  the  court,  or  that  they  cannot  be 
joined  without  ousting  the  jurisdiction  of  the  court  as  to  other 
parties."3  These  averments  should  be  included  in  this  part  of 
the  bill.  "  Every  bill  brought  by  one  or  more  stockholders  in  a 
corporation  and  other  parties,  founded  on  rights  which  may 
properly  be  asserted  by  the  corporation,  must  be  verified  by  oath, 
and  must  contain  an  allegation  that  the  plaintiff  was  a  share- 
holder at  the  time  of  the  transaction  of  which  he  complains  ;  or 
that  his  share  had  devolved  on  him  since  by  operation  of  law ; 

13  Walker  v.  Powers,  104  U.   S.  245,     kuk  N.  L.  Packet  Co.,   8    Fed.  R.   709 ; 
249  ;  Price  v.  Coleman,  21  Federal  Re-    Daniell's  Ch.  Pr.  335,  note  2. 

porter,  357.  §  76.   *  Rule  21. 

14  See  Gaines  v.  Chew,  2  How.  619;         2  Story's    Eq.  PL  §  33;    Langdell's 
Oliver  v.  Piatt,  3  How.  333 ;  Barney  v.     Eq.  PI.  §  55. 

Latham,  103  U.  S.  205 ;  Sheldon  v.  Keo-         3  Rule  22. 


128  BILLS.  [CHAP.  IV. 

and  that  the  suit  is  not  a  collusive  one  to  confer  on  a  court  of  the 
United  States  jurisdiction  of  a  case  of  which  it  would  not  other- 
wise have  cognizance.  It  must  also  set  forth  with  particular- 
ity the  efforts  of  the  plaintiff  to  secure  such  action  as  he  desires 
on  the  part  of  the  managing  directors  or  trustees,  and,  if  neces- 
sary, of  the  shareholders,  and  the  causes  of  his  failure  to  obtain 
such  action."  4  This  rule  does  not  apply  to  suits  brought  by 
the  stockholders  of  a  corporation  after  its  dissolution  ; 5  nor  to  a 
suit  to  restrain  corporate  action  to  which  the  president  of  the  cor- 
poration is  made  a  party  solely  for  purposes  of  discovery  ; 6  nor 
to  a  case  where  it  clearly  appears  that  the  corporation  would 
certainly  refuse  to  exercise  the  right  upon  which  the  suit  is 
founded.7  But  it  has  been  said,  that  "  it  is  not  enough  to  say 
that  it  appears  from  the  bill  that  the  corporation  would  probably 
refuse  relief.  The  rule  is  imperative  that  efforts  should  be  made 
to  obtain  relief  in  that  direction  before  such  a  suit  as  this  shall  be 
commenced."  8  An  allegation  "  that  this  suit  is  brought  in  good 
faith,  and  for  the  collection  of,  and  to  compel  the  collection  of, 
what  your  orator  believes  to  be  a  meritorious  claim,"  is  not 
equivalent  to  the  allegation  "  that  the  suit  is  not  a  collusive  one, 
to  confer  on  a  court  of  the  United  States  jurisdiction  of  a  case  of 
which  it  would  not  otherwise  have  cognizance." 9  In  a  case 
where  the  jurisdiction  of  the  court  depended  upon  the  amount 
involved,  it  was  held  at  circuit  that  the  bill  should  show  that  the 
value  of  the  matter  in  dispute  exceeds  the  jurisdictional  amount.10 
If  a  bill  be  filed  to  impeach  a  patent  or  other  grant  by  the  United 
States  and  be  not  brought  by  the  Attorney-General,  or  some 
other  officer  authorized  by  statute  to  do  so,  it  must  contain  an 
allegation  that  the  Attorney-General  has  "  given  such  order  for 
its  institution  as  will  make  him  officially  responsible  for  it,  and 
show  his  control  over  the  cause."  n 

4  Rule  94-     See  also  Hawes  v.  Oak-         6  Leo  v.  Union  Pacific  Ry.  Co.,  17 
land,  104  U.  S.  450  ;  Huntington  v.  Palmer,    Fed.  R.  273. 

104   U.  S.  482  ;  Dodge   v.  Woolsey,   18  '  County  of  Tazewell  v.  Farmers'  Loan 

How.  331 ;  Greenwood  v.  Freight  Co.,  105  &  Trust  Co.,  12  Fed.  R.  752. 

U.  S.  13,  16 ;  Detroit  v.  Dean,  106  U.  S.  8  McCrary,    J.,    orally    in    Foote    v. 

537,  542  ;  County  of  Tazewell  v.  Farmers'  Cunard  Mining  Co.,  17  Fed.  R.  46,  48. 

Loan    &    Trust   Co.,   12    Fed.   R.   752 ;  9  Quincy  v.  Steel,  120  U.  S.  241,  246, 

Dimpfell   v.   Ohio    &   Miss.   R.   R.   Co.,  247. 

110  U.  S.  209 ;  Quincy  v.  Steel,  120  U.  S.  10  United  States  v.  Pratt  Coal  &  Coke 

241.  Co.,  18  Fed.  R.  708. 

5  Lafayette  Co.  v.  Neely,  21  Fed.  R.  u  Mr.  Justice  Miller  in  United  States 
738.  v.  Throckmorton,  98  U.  S.  61,  71. 


§  77.]        BILLS    TO    ENJOIN   THE    INFRINGEMENT   OF   PATENTS.  129 

§  77.  Bills  to  enjoin  the  Infringement  of  Patents.  —  A  bill  to 
restrain  the  infringement  of  a  patent  must  contain  an  allegation 
that  the  complainant  or  the  person  through  whom  he  claims  was 
the  inventor  or  discoverer  of  the  thing  or  process  patented.1 
The  history  of  the  invention  and  a  description  of  patents  issued 
to  the  complainant  before  that  sued  upon  and  also  proper  aver- 
ments.2 It  is  also  proper  to  describe  previous  litigation  over 
the  same  or  similar  patents.3  It  has,  however,  been  held  to  be 
a  sufficient  allegation  of  title  and  infringement  for  the  plaintiff 
to  allege  :  that  he  "  was  the  true,  original,  and  first  inventor 
of  a  certain  new  and  useful  improved  application  of  steam  power 
to  the  capstan  of  vessels,  not  known  or  used  before  "  ;  "  that 
a  description  or  specification  of  the  aforesaid  improvement  was 
o-iven  in  his  schedule  to  the  aforesaid  letters-patent  annexed, 
accompanied  by  certain  drawings  referred  to  in  said  last  men- 
tioned schedule,  and  forming  parts  of  said  letters-patent,  —  the 
said  letters-patent  and  the  said  specification  thereto  annexed 
(which,  or  an  exemplified  copy  of  which,  your  orators  will  pro- 
duce, as  your  honors  may  direct)  were  duly  recorded  in  the  patent 
office  "  ;  and  "  that  the  defendant  is  now  constructing,  using, 
and  selling  steam-power  capstans  for  vessels  in  some  parts  thereof 
substantially  the  same  in  construction  and  operation  as  in  the 
said  letters-patent  mentioned."  4  The  allegation  "  as  by  the  said 
letters-patent  and  specification,  all  in  due  form  of  law  ready  in 
court  to  be  produced,  will  fully  appear,"  is  equivalent  to  profert 
in  the  most  formal  and  ample  terms.  It  tenders  the  entire  grant 
to  the  inspection  of  the  court  and  party.5  When  profert  of 
the  patent  is  made  in  the  bill,  only  its  title  need  be  set  forth.6 
It  was  held  at  circuit  that  in  a  bill  founded  upon  a  reissued  patent 
it  is  not  necessary  to  cover  specifically  the  ground  upon  which 
the  original  patent  was  surrendered  ;7  but  if  such  a  bill  shows 
a  delay  of  more  than  two  years  in  obtaining  the  reissue,  it  should 
set  up  an  excuse  for  the  delay.8      Upon  a  demurrer  for  both 

§  77.  l  Sullivan  v.  Redfield,  1  Paine,  Valley  Transportation  Co.,  18 Fed.  R.2G0, 

441.  261.      See  M'Coy  v.  Nelson,  121   U.   S. 

2  Steam  Gauge  &  Lantern  Co.  v.  Mc-  484. 
Roberts,  26  Fed.  R.  765.  5  Wilder  v.  McCormick,  2  Blatchf.  31, 

8  Steam  Gauge  &  Lantern  Co.  v.  Mc-  35. 
Roberts,  26  Fed.  R.  765 ;  American  Bell  6  M'Millin  v.  St.  Louis  and  Miss.  Val- 

Tel.  Co.  v.  Southern  Tel.  Co.,  34  Fed.  R.  ley  Transp.  Co.,  18  Fed.  R.  260. 
803.  7  Spaeth  v.  Barney,  22  Fed.  R.  828. 

4  M'Millin  v.  St.  Louis  &  Mississippi         8  Wollensak  v.  Reiher,  116  U.  S.  96. 

9 


130  BILLS.  [CHAP.  IV. 

uncertainty  and  want  of  equity  to  a  bill  founded  upon  a  re- 
issued patent,  when  the  only  allegations  concerning  the  re- 
issue were,  "  that  said  Charles  T.  Day,  having  for  good  and 
lawful  cause  and  with  the  consent  and  approbation  of  your 
orator,  surrendered  said  letters-patent  to  the  commissioner  of 
patents,  and  having  made  due  application  therefor,  and  having 
in  all  things  complied  with  the  acts  of  Congress  in  such  case 
made  and  provided,  did,  on  the  eighteenth  of  February,  1879, 
obtain  new  letters-patent,  being  reissued  letters-patent,  for  the 
same  invention,  for  the  residue  of  said  term,  and  which  were 
marked  '  reissue,  No.  8,590,'  and  were  issued  in  due  form  of 
law  to  your  orator,  as  assignee,  under  the  seal  of  the  patent 
office  of  the  United  States,  signed  by  the  Secretary  of  the  In- 
terior and  countersigned  by  the  Commissioner  of  Patents,  and 
bearing  date  the  day  and  }Tear  aforesaid,  as  by  the  last  mentioned 
reissued  letters-patent,  ready  here  in  court  to  be  produced,  will 
appear  ;  'r  it  was  held  that  the  bill  was  not  objectionable.9  The 
court  then  said  :  "  It  is  not  necessary  to  aver,  specifically,  the 
ground  on  which  the  original  patent  was  surrendered.  The  re- 
issue of  letters-patent  by  the  Commissioner  is  prima  facie  evidence 
that  such  reissue  is  founded  on  sufficient  cause,  and  is  in  accord- 
ance with  law.  It  is  also  presumed  until  the  contrary  is  shown 
that  the  Commissioner  acted  within  his  statutory  authority."  10 
A  bill  founded  upon  a  reissued  patent,  which  shows  a  delay  of 
more  than  two  years  in  the  application  for  the  reissue,  must 
allege  sufficient  excuse  for  the  delay.11  So  must  a  bill  to  com- 
pel the  issue  of  a  patent  which  shows  a  delay  of  two  3rears  in 
prosecuting  the  application  in  the  Patent  Office.12  It  has  been 
held  that  a  simple  averment  that  the  defendant  has  infringed 
the  patents  above  described  is  sufficient.13  A  libel  to  enjoin  the 
infringement  of  several  distinct  patents  has  been  held  multifa- 
rious ; 14  but  if  all  the  patents  are  infringed  in  the  use  of  or 
manufacture  of  a  single  machine  and  it  is  so  alleged,  the  bill  is 


9  Spaeth  v.  Barney,  22  Fed.  R.  828.  For  13  American  Bell  Tel.  Co.  v.  Southern 

a  precedent  of  a  hill  for  the  infringement  Tel.  Co.,  34  Fed.  R.  803.     See  also  Mc- 

of  an  original  patent,  see  McCoy  v.  Nel-  Millin  v.  St.  Louis  &  Mississippi  Valley 

son,  121  U.  S.  484.  Transportation  Co.,  18  Fed.  R.  260 ;  Mc- 

w  Colt,  J.,  in  Spaeth  v.  Barney,  22  Fed.  Coy  v.  Nelson,  121  U.  S.  484. 

R.  828,  829.  14  Hayes  v.  Dayton,  8  Fed.  R.   702 ; 

"  Wollensak  v.  Reiher,  115  U.  S.  96.  Shickle  v.  South  St.  Louis  Foundry  Co., 

i*  Gandy  v.  Marble,  122  U.  S.  432.  22  Fed.  R.  105. 


§  78.]         GENERAL  RULES  OF  EQUITY  PLEADING.  131 

good.15  It  has  been  said  that  the  complainant  "  should  aver 
that  said  inventions  are  capable  of  conjoint  as  well  as  separate 
nse  and  are  so  used  by  the  defendants."  16  Persons  who  are  act- 
ing in  concert  as  employees  of  the  same  corporation  in  the  in- 
fringement of  a  patent  may  be  joined  as  defendants  to  the  same 

bill.47 

§  78.  General  Rules  of  Equity  Pleading.  —  Otherwise,  the  rules 
regulating  the  framing  of  a  bill  and,  with  the  exceptions  subse- 
quently given,  other  pleadings  in  equity  are  substantially  the 
same  as  those  of  pleading  at  common  law ;  but  more  liberality  is 
used  in  their  construction,1  and  the  use  of  technical  expressions 
is  never  necessary.2  If  the  plaintiff  claim  under  a  derivative  title, 
he  must  show  the  steps  by  which  it  has  come  into  existence.3 
Where,  however,  there  is  an  existing  privity  between  the  plaintiff 
and  defendant,  independently  of  the  plaintiff's  title,  which  gives 
the  plaintiff  a  right  to  maintain  the  suit ;  as,  for  example,  if  they 
are  landlord  and  tenant,  or  mortgagor  and  mortgagee,  then  it 
is  not  necessary  to  state  the  plaintiff's  title  fully  in  the  bill.4 
An  allegation  that  the  complainant  acquired  the  title  by  pur- 
chase from  the  assignee  in  bankruptcy  of  the  original  owner  was 
held  sufficient,  although  it  did  not  state  that  the  assignee  in 
bankruptcy  obtained  an  order  from  the  court  authorizing  him  to 
make  the  sale.5  It  was  said  recently  at  circuit,  that  in  a  suit  to 
remove  a  cloud  from  the  title  of  land  generally,  "  it  will  be  found 
sufficient  for  the  plaintiff  to  allege  his  possession  and  interest,  or 
estate  in  the  land,  or  that  he  is  the  owner  thereof  in  fee  for  life 
or  for  years,  and  that  he  claims  the  same  by  a  regular  chain  of 
conveyances  from  some  recognized  and  undisputed  source  of  title, 
as,  the  United  States,  or  its  donee  under  the  donation  act  of 
September  27,  1850,  without  setting  out  such  conveyances  or 
setting  them  out  in  detail.     But  when  there  is  reason  to  believe, 

is  Nourse   v.  Allen,  4   Blatchf.   C.   C.        §  78.   »  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 

376 ;  Perry  v.  Corning,  7  Blatchf.  C.  C.  413. 

195;  Case  v.  Redfield,   4  McLean,  520;         2  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  414. 
Gamewell  Fire  Alarm  Telegraph  Co.  v.         8  Lord  Digby   v.   Meech,    Bunb.    195 ; 

City  of  Chillicothe,  7  Fed.  R.  351  ;  Nellis  Humphreys  v.  Tate,  4  Iredell's  Eq.  (N.  C.) 

v.  McLanahan.  6  Fisher's  Pat.  Cas.  286.  220;    Marshall  v.  Turnbull,  34  Fed.   R. 

16  Gamewell  Fire  Alarm  Telegraph  Co.  827  ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  369, 
v.   City   of  Chillicothe,  7   Fed.   R.  351  ;  370. 

Nellis  v.  McLanahan,  6  Fisher's  Pat.  Cas.  4  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  370, 

280.  371. 

17  Poppenhusen  v.  Falke,   4    Blatchf.  &  Amory  v.  Lawrence,  3  Cliff.  523. 
493. 


132  BILLS.  [CHAP.  IV. 

as  in  this  case  and  many  others,  that  the  rightfulness  of  the 
defendant's  claim  depends  on  the  validity  or  legal  effect  of  some 
link  or  links  in  the  conveyances  under  which  the  plaintiff  claims 
title,  it  is  very  convenient,  if  not  necessary,  that  the  statement  of 
the  plaintiff's  case  should  contain  the  facts  fully  and  in  detail  at 
that  point  in  the  chain  of  his  title  where  it  conflicts  with  the 
claim  of  the  defendant.  By  so  doing  the  necessity  of  future 
amendments  will  he  avoided,  and  the  progress  and  dispatch  of 
the  case  promoted." 6  And  a  demurrer  to  a  bill  for  a  lack  of 
certainty  in  this  respect  has  been  sustained.7  In  a  bill  filed  by 
an  executor  or  administrator,  it  seems  to  be  sufficient  to  state 
that  the  will  has  been  proved,  or  letters  of  administration  taken 
out,  "  in  the  proper  court,"  without  naming  it.8  If,  however, 
the  plaintiff  undertake  to  name  the  court,  and  it  be  an  im- 
proper or  insufficient  one,  the  bill  is  demurrable.9  If  the  plain- 
tiff's title  would  be  incomplete  without  the  performance  of  some 
preliminary  act,  its  performance  must  be  alleged,  and  a  mere 
statement  that  the  title  is  complete  is  insufficient.10  Thus,  in 
an  English  case,  where  the  plaintiff  sued  as  a  shareholder  of  a 
joint-stock  company,  and  merely  alleged  in  his  bill  "  that  he  pur- 
chased for  valuable  considerations  divers  shares,  upon  which  the 
instalment  of  five  per  cent  had  been  paid,  and  that  he  ever  since 
has  been,  and  now  is,  the  holder  of  such  shares ; "'  while  in  an- 
other part  of  the  bill  it  was  alleged  "  that  by  the  rules  of  the 
association,  as  set  forth  in  the  prospectus,  no  transfer  of  shares 
would  be  valid  in  law  or  equity,  unless  the  purchaser  was  approved 
b}'  a  board  of  directors,  and  signed  an  instrument  binding  him  to 
observe  the  regulations,"  —  it  was  held,  on  demurrer,  that  such 
action  on  the  part  of  the  board  and  the  purchaser  was  a  condition 
precedent  to  the  transfer  of  the  title  to  a  share  of  stock  ;  and 
that  the  bill  was  defective  for  not  alleging  such  action.11  So,  a 
complainant  who  rests  his  title  upon  a  tax-deed  must  plead  the 
performance  of  the  prerequisites  to  the  validity  of  the  deed.12 
When  the  nature  of  the  conve}7ance  through  which  the  plaintiff, 

6  Goldsmith  v.  Gilliland,  22  Fed.  R.865,  »  Walburn  v.  Ingilby,  1  M.  &  K.  61 ; 
868.  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  369;   Sto- 

7  Goldsmith  v.  Gilliland,  22  Fed.  R.  865.  ry's  Eq.  PI.  §§  257,  257a,  258. 

8  Humphreys  v.  Ingledon,  1  P.  Wms.  "  Walburn  v.  Ingilby,  1  M.  &  K.  61. 
752.  12  Greenwalt  v.   Duncan,    16  Fed.  R. 

9  Tourton  v.  Flower,  3  P.  Wms.  369 ;  35. 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)  364. 


§  79.]  THE  COMMON  CONFEDERACY  CLAUSE.  133 

claims  is  such  that  by  common  law  independent  of  a  statute,  as  the 
statute  of  frauds,  for  example,  no  deed,  writing,  or  other  formality 
was  essential  to  its  validity,  the  English  rule  was  that  compliance 
with  such  formality  need  not  be  alleged.13  In  this  respect,  equity 
followed  the  rule  at  common  law,  that  such  statutory  regulations 
did  not  alter  the  form  of  pleadings.14  If,  however,  it  appeared 
upon  the  face  of  the  bill  that  such  a  formality  had  not  been  com- 
plied with,  the  bill  was  demurrable  upon  that  ground.15  When, 
however,  a  right  had  been  originally  enacted  by  statute,  as  a 
right  to  land  by  devise,  or  in  this  country  a  patent  or  copyright, 
a  compliance  with  the  statutory  requirements  had  to  be  alleged 
by  one  claiming  under  it.16 

"The  rule  in  equity  is  that  it  is  not  sufficient  to  charge 
a  fraud  simply,  but  you  must  charge  also  some  injury  as  the 
result  of  the  fraud."17  Where  a  bill  shows  apparent  laches,  it 
should  set  forth  the  impediments  to  an  earlier  suit,  the  cause  of 
the  complainant's  previous  ignorance,  if  any,  of  his  rights,  and 
when  he  first  knew  of  them.18  The  same  rule  is  applied  to  a  bill 
upon  a  reissued  patent  showing  a  delay  of  more  than  two  years  in 
the  application  for  a  reissue  ;19  and  to  a  bill  to  compel  the  issue 
of  a  patent  which  shows  a  delay  of  two  years  in  prosecuting  the 
application  in  the  Patent  Office.20  In  construing  this,  as  well  as 
all  other  parts  of  pleadings,  every  doubt  is  against  the  pleader  ;21 
but  contracts  by  corporations  are  presumed  to  be  within  their 
charters  until  the  contrary  is  shown.22  When  the  bill  contains 
general  and  specific  allegations  as  to  the  same  matter,  the  general 
allegations  will  be  referred  to  those  which  are  specific.23 

§  79.  The  Common  Confederacy  Clause.  —  The  confederacy 
part,  which  came  next  in  order,  is  now  expressly  declared  un- 
necessary by  the  equity  rules.1  It  is  still,  however,  inserted  by 
some  practitioners.     The  old  form  was  substantially  as  follows : 

13  Daniell's  Ch.  Pr.  (2d  Am.  cd.)  416,     ards  v.  Mackall,  124  U.  S.  183;    Gandy 
417  ;  Harrison  v.  Hogg,  2  Vesey,  Jr.,  327.     v.  Marble,  122  U.  S.  432  ;  Wollensak  v. 

14  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  416,     Reiher,  115  U.  S.  96. 

417  ;  Stephen  on  Pleading  313.  W  Wollensak  v.  Reiher,  115  U.  S.  96. 

15  Randall   v.    Howard,    2  Black,   585,         2°  Gandy  v.  Marble,  122  U.  S  432. 
589;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  417;        2I  Phelps  v.  McDonald,  99  U.  S.  298, 
Redding  v.  Wilkes,  3  Brown  C.  C.  401.  305. 

16  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  419  ;        *>  Express  Co.  v.  Railroad  Co.,  99  U.  S. 
Sullivan  v.  Redfield,  1  Paine,  441 ;  Atwill  191,  at  page  199. 

v.  Ferrett,  2  Blatch.  C.  C.  39.  23  Ellis  r.Cohnan,  25  Beav.  662 ;  Story's 

17  Linn  v.  Green,  17  Fed.  R.  407.  Eq.  PI.  §  37  a. 

18  Badger  v.  Badger,  2  Wall.  87  ;  Rich-        §  79.   >  Rule  21. 


134  BILLS.  [CHAP.  IV. 

"  But  now  it  is,  may  it  please  your  honor,  that  the  said  A.  B., 
combining  and  confederating  with  divers  persons,"  or,  if  there  are 
several  defendants,  "  combining  and  confederating  with  the  said 
C.  D.  and  E.  F.,  and  with  divers  other  persons,  ...  at  present 
unknown  to  your  orator,  whose  names  when  discovered  your 
orator  prays  he  may  be  at  liberty  to  insert  herein,  with  apt  words 
to  charge  them  as  the  parties  defendant  hereto,  and,  contriving 
how  to  wrong  and  injure  your  orator  in  the  premises,  he  the  said 
A.  B.  at  times  pretends  that."  2  "  This  practice  is  said  to  have 
arisen  from  the  idea  that  without  such  a  charge  parties  could  not 
be  added  to  the  bill  by  amendment,  and  in  some  cases  perhaps 
the  charge  has  been  inserted  with  a  view  to  give  the  court  juris- 
diction." 3  It  is  mere  surplusage,  and  being  a  conclusion  of  law 
when  inserted  need  not  be  answered.4 

§  80.  The  Charging  Part.  —  Next  followed  formerly  the  charg- 
ing part  of  the  bill,  which  also  has  been  declared  unnecessary  by 
the  equity  rules,1  but  is  occasionally  used.  "  It  usuallv  consists 
of  some  allegation  or  allegations,  which  set  forth  the  matters  of 
defence,  or  excuse,  which  it  is  supposed  the  defendant  intends 
or  pretends  to  set  up,  to  justify  his  non-compliance  with  the 
plaintiff's  right  or  claim  ;  and  then  charges  other  matters,  which 
disprove  or  avoid  the  supposed  defence  or  excuse.  It  is  some- 
times also  used  for  the  purpose  of  obtaining  a  discovery  of  the 
nature  of  the  defendant's  case,  or  to  put  in  issue  some  matter, 
which  it  is  not  for  the  interest  of  the  plaintiff  to  admit ;  for  which 
purpose  the  charge  of  the  pretence  of  the  defendant  is  held  to  be 
sufficient."  2  If  such  averments  are  considered  necessary  now,  the 
proper  method  of  pleading  is  to  include  them  in  the  narrative  part 
of  the  bill.3 

§  81.  The  Jurisdiction  Clause- —  Then,  came  the  jurisdiction 
clause.  This  ran  substantially  as  follows  :  "  All  which  actings,  do- 
ings, and  pretences  of  the  said  confederates  are  contrary  to  equity 
and  good  conscience  ;  and  tend  to  the  manifest  wrong,  injury,  and 
oppression  of  your  orator  in  the  premises.  In  tender  considera- 
tion whereof,  and  forasmuch  as  your  orator  is  entirely  remediless 
by  the  strict  rules  of  the  common  law,  and  can  only  have  relief 
in  a  court  of  equity,  where  matters  of  this  nature  are  properly 

2  Story's  Eq.  PI.  §  29,  note  2.  2  Story's  Eq.  PL  §  31.     See  Mitford's 

8  Mitford's  PI.  ch.  1,  §  2.  PI.  eh.  1,  §  3. 

4  Story's  Eq.  PI.  §  29.  s  Rule  21  ;   Partridge  v.  Haycraft,  11 

§  80.   !  Rule  21.  Ves.  574.     See  §  67. 


§  82.]  THE  INTERROGATORY  CLAUSE.  135 

cognizable;  to  the  end,  therefore,"  *  &c.  It  is  still  the  common 
usage  to  insert  a  short  clause  of  this  character,  although  it  has 
been  declared  by  the  equity  rules  unnecessary.''' 

§  82.  The  Interrogatory  Clause.  —  The  interrogatory  clause 
which  followed  was  of  much  more  importance  formerly,  when 
parties  to  a  suit  could  not  testify  in  actions  at  common  law,  than 
it  is  at  the  present  time.  Yet,  in  addition  to  the  inclusion  in  the 
prayer  for  relief  of  a  request  that  the  defendants  be  compelled 
to  answer  the  bill,  it  is  still  not  unusual  to  require  them  to 
answer  specific  interrogatories.  The  equity  rules  provide  as 
follows  :  "  The  interrogatories  contained  in  the  interrogating  part 
of  the  bill  must  be  divided  as  conveniently  as  may  be  from  each 
other,  and  numbered  consecutively  1,  2,  3,  &c. ;  and  the  inter- 
rogatories which  each  defendant  is  required  to  answer  shall  be 
specified  in  a  note  at  the  foot  of  the  bill,  in  the  form  to  the 
effect  following,  that  is  to  say:  'The  defendant  (A.  B.)  is  re- 
quired to  answer  the  interrogatories  numbered  respectively  1,  2, 
3,  &c.' "  1  "  The  note  at  the  foot  of  the  bill,  specifying  the  in- 
terrogatories which  eacli  defendant  is  required  to  answer,  shall 
be  considered  and  treated  as  part  of  the  bill ;  and  the  addition 
of  any  such  note  to  the  bill,  or  any  alteration  in  or  addition  to 
such  note,  after  the  bill  is  filed,  shall  be  considered  and  treated 
as  an  amendment  to  the  bill."  2  "  Instead  of  the  words  of  the  bill 
now  in  use  preceding  the  interrogatory  part  thereof,3  and  begin- 
ning with  the  words  '  to  the  end  therefore,'  there  shall  hereafter 
be  used  words  in  the  form  or  to  the  effect  following:  '  To  the 
end,  therefore,  that  the  said  defendants  may,  if  they  can,  show 
why  your  orator  should  not  have  the  relief  hereby  prayed,  and 
may,  upon  their  several  corporate  oaths  and  according  to  the 
best  and  utmost  of  their  several  and  respective  knowledge,  re- 

§  81.   1  Story's  Eq.  PI.  §  34,  and  notes,  repeated,  and  they  thereunto  distinctly 

2  Rule  21.  interrogated;  and  that  not   only  to  the 

§  82.   1  Rule  41.  best  of  their  respective  knowledge  and 

2  Rule  42.  remembrance,  but  also  as  to  the  best  of 

8  The  old  form  was  as  follows  :  "  To  their  several  and  respective  information, 

the  end,  therefore,  that  the  said  A.  B.  hearsay,  and  belief ;  and  more  especially 

and  the  rest  of  the  confederates,  when  that   they   may   answer    and    set    forth 

discovered,  may  upon  their  several  and  whether,  &c. ;  or  they  may  set  forth  and 

respective    corporate    oaths,    full,   true,  discover  whether  they  do  not  know,  have 

direct,  and  perfect  answer  make,  to  all  heard,  or  are  informed,  and  in  their  con- 

and    singular   the   matters   hereinbefore  science  believe  that,"  &c.      Story's  Eq. 

stated  and  charged,  as  fully  and  particu-  PI.  §  35,  note  2. 

larly   as   if  the   same   were  hereinafter 


136  BILLS.  [CHAP.  IV. 

merabrance,  information,  and  belief,  full,  true,  direct,  and  perfect 
answer  make  to  each  of  the  several  interrogatories  hereinafter 
numbered  and  set  forth,  as  by  the  note  hereunder  written  they 
are  respectively  required  to  answer  ;  that  is  to  say,  — 

"  '  Whether,  &c. 

»  '  Whether,  &c.'  "  4 

No  interrogatory  need  be  answered  or  will  be  sustained  which 
does  not  refer  to  some  matter  alleged  in  the  narrative  part  of  the 
bill,5  but  a  number  of  interrogatories  may  be  founded  upon  a 
sino-le  allegation.6  The  defendant  need  not  answer  an  inter- 
rogatory  if  by  so  doing  he  would  subject  himself  to  a  penalty 
or  a  forfeiture,  or  to  punishment  for  a  crime.7  When  there  are 
no  specific  interrogatories  the  defendants  are  still  bound  to  an- 
swer, either  admitting  or  denying  every  part  of  the  bill,  as  if 
they  had  been  specifically  interrogated  thereabout.8  An  answer 
under  oath  to  the  whole  of  the  bill,  or  to  all  but  certain  specified 
interrogatories,  may  be  expressly  waived  by  the  plaintiff.9  Such 
waiver  is  usually  inserted  in  the  prayer  for  relief  or  for  process. 

§  83.  The  Prayer  for  Relief.  —  "  The  prayer  of  the  bill  shall  ask 
the  special  relief  to  which  the  plaintiff  supposes  himself  entitled, 
and  also  shall  contain  a  prayer  for  general  relief.  And  if  an 
injunction,  or  a  writ  of  ne  exeat  regno,  or  any  other  special  order, 
pending  the  suit  is  required,  it  shall  also  be  specially  asked  for."1 
Under  the  prayer  for  general  relief  the  court  will  usually  grant 
any  relief2  other  than  an  interlocutory  order,  which  is  consistent 
with,  and  a  ground  for  which  is  included  in,  the  allegations  of 
the  bill,3  and  not  inconsistent  with  the  prayer  for  special  relief.4 
It  seems  that  if  there  be  no  objection  to  the  specific  relief  prayed 

4  Rule  43.    For  an  excellent  statement         9  Amendment  of  1851  to  Rule  41. 

of  the  reasons  for  the  use  of  specific  in-  §  83.  *  Rule  21.  Compare  Blomfield  v. 

terrogatories,   see   Report   of    Chancery  Eyre,  8  Beav.  250,  259. 

Commissioners,  9th  March,  1826,  Appen-  a  Tayloe  v.  Merchants'  Fire  Ins.  Co., 

dix,  pp.  1,2;  Story's  Eq.  PI.  §  38,  note  3.  9  How.  390;  Stewart  v.  Chesapeake  & 

5  Attomev-General  v.  Whorwood,  1  Ohio  Canal  Co.,  1  Fed.  R.  361 ;  County 
Ves.  534;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  of  Mobile  v.  Kimball,  102  U.  S.  691; 
432,  433.  Chicago,  St.  L.  &  N.  0.  R.  R.  Co.  v.  Ma- 

G  Faulder  ?•.  Stuart,  11  Ves.  296 ;  Bui-  comb,  2  Fed.   R.  18  ;  Adams  v.  Kehlor 

lock  v.  Richardson,  11  Ves.  375;  Story's  Milling  Co.,  36  Fed.  R.  212. 
Eq.  PI.  §  37.  3  English  v.  Foxall,  2  Pet.  595;  Curry 

t  Stewart  v.  Drasha,  4  McLean,  563  ;  v.  Lloyd,  22  Fed.  R.  258,  265. 
Atwill  v.  Ferrett,  2  Blatchf.  C.  C.  39;         *  Hiern  v.   Mill,  13  Ves.   118;  Soden 

United  States  v.  White,  17  Fed.  R.  561,  v.  Soden  there  cited  ;  Grimes  v.  French, 

565.  2  Atk.  141 ;  Curry  v.  Lloyd,  22  Fed.  R. 

s  Amendment  of  1850  to  Rule  40.  258,  265. 


§  84]  WAIVERS   AND   OFFERS.  137 

for,  the  plaintiff  cannot  at  the  hearing  abandon  that  and  obtain 
a  decree  for  different  relief.5  It  has  been  held  in  England  that, 
in  some  cases  of  fraud,  where  no  other  relief  can  be  given  against 
a  party  deeply  involved  in  the  fraud  charged  by  the  bill,  the 
payment  of  the  costs  of  the  suit  by  that  party  ought  to  form  the 
subject  of  a  specific  prayer,  and  that  otherwise  his  demurrer  to 
the  bill  will  be  sustained.6  In  a  case  where  the  bill  contained 
allegations  showing  threatened  injury  to  rights  of  property,  not 
however  mentioned  as  an  independent  ground  of  relief,  while  it 
was  mainly  occupied  with  complaints  of  a  threatened  invasion 
of  rights  of  a  political  nature,  as  the  specific  prayers  for  relief 
were  confined  to  the  protection  of  the  political  rights,  although 
the  bill  contained  a  general  prayer  for  relief,  the  court  refused 
to  consider  the  allegations  concerning  the  threatened  injury  to 
property.7  A  bill  may,  however,  pray  relief  in  the  alternative, 
when  it  is  said  to  have  a  double  aspect.8  The  prayer  for  general 
relief,  Mr.  Robins,  "  an  eminent  counsel,"  used  to  say,  was  "  the 
best  prayer  after  the  Lord's  Prayer."9  It  is  usually  in  one  of 
the  two  following  forms :  "  And  that  your  orator  shall  have  such 
other  or  further  or  other  and  further  relief,  in  the  premises,  as 
to  this  court  shall  seem  meet;"  or  "that  your  orator  may  be 
further  and  otherwise  relieved  in  the  premises  according  to 
equity  and  good  conscience."  If  a  different  state  of  facts,  under 
which  the  complainant  is  entitled  to  relief,  appears  upon  the 
hearing,  the  court  may  allow  the  case  to  stand  over,  and  give 
the  plaintiff  leave  to  amend  his  bill  in  conformity  with  them,  and 
then  obtain  relief.10  And  if  the  complainant  be  an  infant  or  the 
representative  of  a  charity,  it  would  formerly  grant  relief  without 
regard  to  the  allegations  in  the  bill.11 

§  84.  Waivers  and  Offers.  —  It  is  customary  to  insert  in  the 
prayer  for  relief  any  waiver  or  offer  which  the  plaintiff  desires  to 
make  ; 1  although  there  is  no  reason  why  that  should  not  be  set 

6  Allen  v.  Coffman,  1  Bibb  (Ky.),  469  ;  note  b  ;  Dormer  v.  Fortescue,  3  Atk.  124  ; 

Pillow  v.  Pillow,  5  Yerg.  (Tenn.),  420.  Story's  Eq.  PI.  §  41,  n.  1. 

6  Le  Texier  v.  The  Margravine  of  10  Beaumont  v.  Boultbee,  5  Ves.  485  ; 
Anspach,  15  Ves.  159,  164;  Daniell's  Ch.  Palk  v.  Lord  Clinton,  12  Ves.  63;  Dan- 
Pr.  (2d  Am.  ed.)  441.  iell's  Ch.  Pr.  (2d  Am.  ed.)  439,  440. 

7  Georgia  v.  Stanton,  6  Wall.  50.  "  Stapilton    v.    Stapilton,    1    Atk.    2; 

8  Shields  v.  Barrow,  17  How.  130, 144;  Attorney-General  v.  Jeanes,  1  Atk.  355; 
Kilgour  v.  New  Orleans  Gas-Light  Co.,  Story's  Eq.  PI.  §  40,  note. 

2  Woods,  144,   148;  Gaines  v.  Chew,  2  §  84.  *  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 

How.  019,  643.     See  §  70.  443. 

9  Manaton  v.  Molesworth,  1  Eden,  26, 


138  BILLS.  [chap.  IV. 

forth  in  the  narrative  part  of  the  bill.  "  If  the  complainant  in 
his  bill  shall  waive  an  answer  in  the  oath,  or  shall  only  require 
an  answer  under  oath  with  regard  to  certain  specified  interroga- 
tories, the  answer  of  the  defendant,  though  under  oath,  except 
such  part  thereof  as  shall  be  directly  responsive  to  such  inter- 
rogatories, shall  not  be  evidence  in  his  favor,  unless  the  cause  be 
set  down  for  hearing  on  bill  and  answer  only  ;  but  may  never- 
theless be  used  as  an  affidavit,  with  the  same  effect  as  heretofore, 
on  a  motion  to  grant  or  dissolve  an  injunction,  or  on  any  other 
incidental  motion  in  the  cause.  But  this  shall  not  prevent  a 
defendant  from  becoming  a  witness  in  his  own  behalf  under  sec- 
tion 3  of  the  Act  of  Congress  of  July  2,  1864." 2  It  rarely 
happens  that  advantage  of  this  provision  is  not  taken  by  a  waiver 
inserted  here,  or  more  frequently  in  the  prayer  of  process,  in 
order  to  avoid  the  rule,  that  otherwise  an  allegation  responsive 
to  the  bill  in  a  sworn  answer  is  presumed  to  be  true,  unless  re- 
butted by  the  testimony  of  two  witnesses,  or  one  witness  and 
strong  corroborating  circumstances.3  In  accordance  with  the 
maxim  that  he  who  seeks  equity  must  do  equity,  a  court  of 
equity  often  refuses  relief  to  one  seeking  its  aid,  unless  upon 
condition  that  he  shall  do  what  it  considers  equitable  to  the 
defendant,  or  sometimes  even  to  a  third  person.4  In  some  cases 
it  enforces  this  by  the  entry  of  a  conditional  decree  without 
reference  to  the  pleadings.5  But  its  more  usual  practice  is  to 
insist  that  the  plaintiff  shall  offer  to  perform,  or,  in  some  cases, 
allege  the  performance  of,  the  equitable  act  that  it  requires  of 
him  in  his  bill,  which  otherwise  will  be  demurrable.  Thus,  a  bill 
to  cancel  securities  claimed  to  be  usurious,  or  otherwise  rendered 
void  by  a  statute,  must  contain  an  offer  by  the  plaintiff  to  pay 
the  defendant  the  money  he  has  received  therefor  with  lawful 
interest.6  And  it  seems  that  a  State  statute  abolishing  this  rule 
of  equity  will  not  be  followed  by  a  United  States  court,  though 
the  suit  concerns  securities  made  in  such  State,  at  least  not  when 
the  court  is  held  in  another  State.7  So  a  bill  to  redeem  a  mort- 
gage must  contain  an  offer  to  pay  what  is  due  thereon,  though 

2  Amendment  of  1871  to  Rule  41.  436;  Tupper  v.  Powell,  1  J.  Ch.  (N.  Y.) 

8  Vigel  v.  Hopp,  104  U.  S.  441.  439 ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  443. 
*  Fosdick  v.  Schall,  99  U.  S.  235.  7  Matthews  v.  Warner,  6  Fed.  R.  461 ; 

5  Walden  v.  Bodley,  14  Pet.  156,  164,  8.  c.  affirmed  upon  another  point,  112 
165.  U.  S.  600. 

6  Mason  v.  Gardiner,  4  Brown  C.  C. 


§  84]  WAIVEES   AND   OFFERS.  139 

the  particular  sum  need  not  be  specified.8  A  bill  to  set  aside  a 
judicial  sale  as  void  must  be  accompanied  by  a  tender  of  the 
purchase-money  with  interest,  provided  it  was  applied  for  the 
benefit  of  the  estate,  unless  that  money  has  been  first  repaid, 
which  the  court  might  require  to  be  done  before  the  bill  is  filed.9 
A  bill  to  set  aside  a  tax  sale  must  contain  an  offer  to  repay 
the  purchaser  at  least  all  legal  taxes  on  the  property  paid  by  him, 
both  those  for  which  the  property  was  sold  and  those  subse- 
quently levied  thereon  and  paid  by  him,  with  interest  upon  each 
sum.10  A  bill  to  restrain  the  collection  of  State  taxes  must  be 
preceded  by  payment  of  "  what  is  conceded  to  be  due,  or  what 
can  be  seen  to  be  due  on  the  face  of  the  bill,  or  be  shown  by 
affidavits,  whether  conceded  or  not,  before  the  preliminary  in- 
junction should  be  granted."  u  If  the  whole  tax  is  claimed  to 
be  void  as  improperly  assessed,  it  seems  that  the  complainant 
must  tender  the  amount  he  would  owe  if  a  proper  assessment 
had  been  made.12  If  the  proper  officer  refuses  to  receive  a 
part  of  the  tax,  it  must  be  tendered,  and  tendered  without  the 
condition  annexed  of  a  receipt  in  full.13  A  bill  to  compel  the 
specific  performance  of  a  contract  by  a  defendant  should,  it 
seems,  contain  an  offer  by  the  plaintiff  to  perform  his  part  there- 
of.14 And  formerly  it  was,15  but  no  longer  is,16  required  that  a 
bill  for  an  account  should  contain  an  offer  on  the  part  of  the 
plaintiff  to  pay  the  balance,  if  any,  found  due  against  him.  But 
a  bill  filed  by  the  United  States  to  vacate  a  patent  for  public 
lands  as  obtained  by  fraud,  need  not  contain  an  offer  to  return 
the  money  paid  therefor  by  the  fraudulent  patentee.17  Nor  need 
a  bill  to  obtain  relief  against  an  infringement  of  a  copyright  con- 
tain a  waiver  of  the  complainant's  statutory  right  to  a  forfeiture 


8  Story's  Eq.  PI.  §  187  a;  Harding  v.  "  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  442; 
Pingey,  10  Jurist  n.  s.  872  ;  Perry  v.  Carr,  Stapylton  v.  Scott,  13  Ves.  425;  Fife  v. 
41  N.  H.  371.  Clayton,  13  Ves.  546. 

9  Davis  v.  Gaines,  104  U.  S.  386.  «  Godbolt  v.  Watts,  2  Anst.  543  ;  Dan- 
i"  Gage  v.  Pumpelly,  115  U.  S.  454.  iell's  Ch.  Pr.  442. 

11  State  Railroad  Tax  Cases,  92  U.  S.  16  Colombian  Government  v.  Roths- 
575,  617.  child,  1  Simons,  94, 103  ;  Wells  v.  Strange, 

12  State  Railroad  Tax  Cases,  92  U.  S.  5  Ga.  22. 

575,617;  National  Bank  v.  Kimball,  103  17  United   States  v.  Minor,   114  U.   S. 

U.  S.  732.  233.     See  also  Moffat  v.  United  States, 

13  State  Railroad  Tax  Cases,  92  U.  S.  112  U.  S.  24;  United  States  v.  White, 
575,  617  ;  National  Bank  v.  Kimball,  103  17  Fed.  R.  561,  565 ;  United  States  v. 
U.  S.  732.  Pratt  Coal  &  Coke  Co.,  18  Fed.  R.  708. 


140  BILLS.  [CHAP.  IV. 

of  the  piratical  plates.18  It  is,  however,  a  rule  in  equity,  that 
no  person  will  be  compelled  to  discover  that  which  may  expose 
him  to  a  penalty  or  forfeiture.19  A  discovery  of  such  matters 
can  only  be  compelled  when  the  complainant  is  the  only  person 
who  can  enforce  the  penalty  or  forfeiture,  and  he  is  willing  to 
waive  it ; 20  as,  for  example,  in  a  case  of  infringement  of  copy- 
right.21 An  omission  of  a  waiver,  tender,  or  offer,  whenever  con- 
sidered necessary,  is  a  ground  for  demurrer;22  but  leave  to 
amend  is  in  such  cases  usually  given.  And  in  many,  but  not 
all  cases,23  when  no  actual  tender  is  required,  a  general  offer  to  do 
whatever  equity  requires  in  the  premises  seems  to  be  sufficient. 
In  some  cases  the  court  will  give  relief  by  a  conditional  decree 
imposing  terms  upon  the  complainant,  although  no  offer  is  con- 
tained in  his  bill.24 

§  85.  The  Prayer  of  Process.  —  The  prayer  of  process  usuall}' 
requests  the  issue  of  a  subpoena  to  compel  the  defendants  to 
appear  and  answer  and  abide  the  judgment  of  the  court.  "  The 
prayer  for  process  of  subpoena  in  the  bill  shall  contain  the 
names  of  all  the  defendants  named  in  the  introductory  part  of 
the  bill,  and  if  any  of  them  are  known  to  be  infants  under  age, 
or  otherwise  under  guardianship,  shall  state  the  fact,  so  that  the 
court  may  take  order  thereon  as  justice  may  require,  upon  the 
return  of  the  process.  If  an  injunction  or  a  writ  of  ne  exeat 
regno,  or  any  other  special  order  pending  the  suit,  is  asked  for  in 
the  prayer  for  relief,  that  shall  be  sufficient,  without  repeating  the 
same  in  the  prayer  for  process."1  "  The  plaintiff  may  complain 
and  tell  stories  of  whom  he  pleases,  but  they  only  are  defendants 
against  whom  process  is  prayed."2  It  has,  however,  been  held 
that  the  omission  in  the  prayer  of  process  of  the  name  of  a 
defendant  otherwise  sufficiently  described  in  the  bill  is  waived 
by  his  general  appearance,  and  that  no  other  defendant  can  take 

18  Farmer  v.  Calvert  Lithographing  Co.,  22  United  States  v.  Pratt  Coal  &  Coke 
1  Flippin,  228.  Co.,  18  Fed.  R.  708. 

19  Stewart  v.  Drasha,  4  McLean,  563 ;  23  State  Railroad  Tax  Cases,  92  TJ.  S. 
Atwill  v.  Ferrett,  2  Blatchf.  39 ;  United  575,  617. 

States  v.  White,  17  Fed.  R.  561,  565.  »  Walden  v.  Bodley,  14  Pet.  156,  164, 

20  Lord  Uxbridge  v.  Staveland,  1  Ves.     165. 

Sen.  56 ;   Atwill   v.  Ferrett,   2   Blatchf.  §  85.   *  Rule  23.     Segee  v.  Thomas,  3 

39.  Blatchf.  C  C.ll ;  Buerk  v.  Imhaeuser,  8 

2i  Atwill    v.    Ferrett,   2    Blatchf.    39 ;  Fed.  R.  457. 
Farmer  v.  Calvert  Lithographing  Co.,  1         2  Lord  Chancellor  Parker  in  Fawkes 

Flippin,  228,  233.  v.  Pratt,  1  P.  Wms.  593. 


§  86.]  THE    SIGNATURE   TO   A    BILL.  141 

advantage  of  the  defect.3  If  a  party  is  sought  to  be  sued  in 
both  his  individual  and  a  representative  capacity,  process  should 
be  asked  against  him  in  both  capacities.  Otherwise,  it  seems, 
that  he  would  be  held  to  be  a  party  only  in  that  capacity  in 
which  he  was  therein  referred  to,  even  though  in  the  subpoena 
and  in  the  introduction  to  the  bill  he  were  named  as  a  defendant 
in  both  capacities.4  If  process  be  prayed  against  a  defendant  in 
a  representative  capacity  and  the  subpoena  be  issued  against  him 
generally,  the  bill  is  not  demurrable.5  The  proper  remedy  is  a 
motion  to  set  aside  the  subpoena.  A  bill  without  a  prayer  of 
process  is  demurrable.0 

§  86.  The  Signature  to  a  Bill.  —  "  Every  bill  shall  contain  the 
signature  of  counsel  annexed  to  it,  which  shall  be  considered  as 
an  affirmation  on  his  part  that,  upon  the  instructions  given  to 
him  and  the  case  laid  before  him,  there  is  good  ground  for  the 
suit  in  the  manner  in  which  it  is  framed."1  This  practice  began, 
it  is  said,  in  the  time  of  Sir  Thomas  More.2  Before  that  time  it 
was  the  practice  for  a  master  in  chancery  to  examine  the  bill  and 
determine  whether  it  was  better  to  dismiss  it  originally  or  retain 
it  by  subpoena.3  A  signature  upon  the  back  of  the  bill  has  been 
held  to  be  sufficient.4  The  remedy  for  a  defect  in  this  respect 
is  by  a  motion  to  take  the  bill  off  the  file,5  or  by  demurrer.6 
The  court  may  of  its  own  motion  order  the  bill  taken  off  the 
file.7  Leave  to  amend  by  adding  the  signature  is  always 
granted.8  If  the  defendant  should  answer  without  taking  the 
objection,  such  a  defect  would  probably  be  held  waived.9  If  the 
complainant  sued  in  person  the  signature  of  counsel  would  proba- 
bly be  dispensed  with.10  A  bill  is  also  usually  signed  by  the 
solicitor,  who  may  be  the  same  person  as  the  counsel,  but  not  by 
the  plaintiff  unless  he  sue  in  person. 

8  Buerk  v.  Imhaeuser,  8  Fed.  R.  457.  4  Dwight  v.   Humphreys,  3  McLean, 

*  Carters.  Ingraham,43  Ala.  78.     But  104. 

see  Brasher  v.  Van   Cortlandt,  2  J.  Ch.  5  Dillon  v.  Francis,  1  Dickens,  68. 

(N.  Y.)  247.  6  Kirkley   v.   Burton.   5    Madd.    378; 

6  Walton    v.    Herbert,   3    Green    Ch.  Dwight  v.  Humphreys,  3  McLean,  104. 

(N.  J.)  73.  7  French  r.  Dear,  5  Ves.  547. 

0  Elmendorf  v.  Delancey,  1  Hopkins  8  Kirkley   v.   Burton,   5    Madd.   378; 

(N.  Y.),  555.  Dwight  v.  Humphreys,  3  McLean,  104. 

§  86.   i  Rule  24.  9  See  U.  S.  R.  S.  §  954. 

2  Hargrave's  Law  Tracts,   302;  Dan-  w  See  U.  S.  R.  S.  §  747  ;  1   Hoffman's 

iell's  Ch.  Pr.  (2d  Am.  ed.)  357.  Ch.  Pr.  97. 

8  1  Hargrave's  Law  Tracts,  302 ;  Dan- 
iell's  Ch.  Pr.  (2d  Am.  ed.)  357. 


142  BILLS.  [CHAP.  IV. 

§  87.  Affidavits  to  Bills.  —  An  affidavit  must  be  annexed  to 
the  bill  in  the  following  cases  and  no  others,  although  a  super- 
fluous affidavit  will  not  make  the  bill  bad :  A  bill  to  obtain  the 
benefit  of  an  instrument  upon  which  an  action  at  law  would  lie, 
were  it  not  either  lost  or  out  of  the  possession  of  the  complainant, 
and  believed  to  be  in  that  of  the  defendant,  must  be  supported 
by  an  affidavit  of  those  facts  which  are  necessary  to  give  the 
court  jurisdiction.1  A  bill  to  perpetuate  the  testimony  of  wit- 
nesses, or  to  take  testimony  de  bene  esse,  must  be  supported  by 
an  affidavit  stating  the  reasons  which  render  such  a  proceeding 
necessary.2  A  bill  of  interpleader,  and  perhaps  also  a  bill  in  the 
nature  of  an  interpleader,  should  be  supported  by  an  affidavit  by 
the  plaintiff  that  he  does  not  collude  with  either  of  the  defend- 
ants;3 or  if  the  plaintiff  be  a  corporation,  by  one  of  its  officers, 
that,  to  the  best  of  his  knowledge  and  belief,  the  plaintiff  does 
not  so  collude.4  "  Every  bill  brought  by  one  or  more  stock- 
holders in  a  corporation  against  the  corporation  and  other  parties, 
founded  on  rights  which  may  properly  be  asserted  by  the  cor- 
poration, must  be  verified  under  oath."  5  Every  bill  which  it  is 
desired  to  use  in  support  of  a  motion  for  a  stay  order,  special  in- 
junction, substituted  service,  or  other  interlocutory  application, 
other  than  one  for  a  common  injunction,  must  be  accompanied 
by  an  affidavit  verifying  the  bill  itself  or  the  substance  of  its 
allegations.6  In  the  first  three  instances  where  an  affidavit  is 
required,  the  defendant  can  only  take  advantage  of  the  defect  by 
demurrer."     By  plea  or  answer  the  omission  will  be  waived.8 

§  88.  Bills  of  Interpleader. —  A  bill  of  interpleader  is  a  petition 
filed  by  a  disinterested  person  holding  a  fund  or  thing  to  which 
two  or  more  who  are  made  defendants  set  up  conflicting  claims, 
between  whom  he  cannot  decide  without  incurring  the  risk,  if  he 
delivers  the  property  to  one,  of  being  finally  obliged  to  pay  the 
other  damages  for  having  done  so.1  It  can  only  be  filed  by  one 
who  claims  no  interest  in  the  property  in  question,  and  who  seeks 

§  87.  i  Walmsley  v.  Child,  1  Ves.  Sen.  6  See  chapter  XV. 

343;   Whitfield  v.   Fausset,  1    Ves.  Sen.  7  Findlay   v.  Hinde,  1  Pet.  241,  244; 

302;   Story's  Eq.  PI.  §§  313,  477;   Dan-  Crosse  v.  Bedingfield,  12  Simons,  35;  Dan- 

iell's  Ch.  Pr.  (2d  Am.  ed.)  449,  450.  iell's  Ch.  Pr.  (2d  Am.  ed.)  453. 

2  Philips   v.  Carew,  1  P.  Wms.  117;  8  Findlay  v.  Hinde,   1  Tet.  241,  244; 

Daniell's  Ch.  Pr.  (2d  Am.  ed.)  452.  Crosse  v.  Bedingfield,  12  Simons,  35. 

8  Metcalf  v.  Hervey,  1  Ves.  Sen.  248.  §  88.   >  Mitford's  Eq.  PI.  ch.  1 ;  Story's 

*  Bignold  v.  Audland,  11  Simons,  23.  Eq.  PI.  §§  291-297  ;  Daniell's  Ch.  Pr.  (2d 

5  Rule  94.  Am.  ed.)  ch.  xxxii. 


§  88.]  BILLS    OF   INTERPLEADER.  143 

no  other  relief  than  leave  to  deposit  it  in  the  care  of  the  court, 
and  be  relieved  from  all  danger  of  further  vexation  concerning 
the  same.2  The  conflicting  claims  must  be  doubtful.3  The 
claimants  must  seek  the  same  thing,  not  merely  the  same 
amounts  under  different  contracts.4  A  tenant  or  agent  may  not, 
by  filing  such  a  bill,  dispute  the  title  of  his  lessor  or  principal 
when  a  demand  is  made  upon  him  by  a  stranger  claiming  under 
title  paramount.5  He  may,  however,  thus  obtain  relief  when 
different  persons  claim  under  assignments  from  the  person  to 
whom  he  first  owed  the  debt.6  A  bill  of  interpleader  may  be 
filed  before  or  after  proceedings  at  law  have  been  begun  against 
the  complainant  ;7  but  no  injunction  can  be  granted  to  restrain  a 
proceeding  already  begun  in  a  State  court;8  nor,  according  to 
the  English  rule,  to  stay  proceedings  in  ejectment  in  any  court.9 
If  a  suit  in  equity  have  been  alread}'  begun  against  the  stake- 
holder, he  might  perhaps  obtain  relief  by  a  petition  therein  ;  10  but 
the  more  prudent  course  is  for  him  to  file  a  new  bill.11  The  fact 
that  one  of  the  conflicting  claims  is  actionable  at  law  and  the 
other  is  purely  equitable,  will  not  deprive  him  of  relief.12  The 
enactment  of  a  State  statute  giving  similar  relief  upon  motion 
by  the  defendant  to  an  action  at  law,  does  not  deprive  equity  of 
its  original  jurisdiction.13  The  most  common  kind  of  interpleader 
suits  at  the  present  time  are  those  brought  by  insurance  com- 
panies against  conflicting  claimants  to  the  proceeds  of  policies  is- 
sued by  them.14  A  bill  of  interpleader  should  state  the  manner 
in  which  the  plaintiff  obtained  possession  of  the  property  in 
question,  and  admit  that  he  has  no  interest  therein.  It  should 
set  forth  the  claims  of  the  defendants,  showing  that  they  con- 
flict, and  that  he  is  ignorant  of  their  respective  rights,  and  cannot 

2  Killian  v.  EbbinghauB,  110  U.S.  568;        1  Richards  v.  Salter,  6  J.  Ch.  (N.  Y.) 

Langston    v.   Boylston,   2  Ves.  Jr.  101 ;  445. 
Mohawk  &  Hudson  It.  R.  Co.  v.  Clute,        8  U.  S.  R.  S.  §  720. 
4  Paige,  (N.  Y.)  384.  »  Metcalf  v.  Hervey,  1  Ves.  Sen.  248. 

8  Shaw  v.  Coster,  8  Paige  (N.  Y.),  339 ;       10  Badeau  v.  Rogers,  2  Paige  (N.  Y.), 

Cochrane   v.  O'Brien,  2  Jones  &  La  T.  209. 
380;  Story's  Eq.  PI.  §  292.  "  Birch  v.  Corbin,  1  Cox  Eq.  141. 

*  Hoggart  v.  Cults,  1   Cr.  &  Ph.  197;        B  Richards  U.Salter,  6  J.  Ch.  (N.Y.)  445. 
Story's  Eq.  PI.  §  293.  "  Barry  v.  Mutual   Life   Ins.   Co.,  63 

6  Dungey  v.  Angove,  2  Ves.  Jr.  304,  N.  Y.  536  ;  Wood  v.  Swift,  81  N.  Y.  31, 35 ; 

310 ;    Lowe  v.  Richardson,  3  Madd.  277 ;  Board  of  Education  v.  Scoville,  13  Kan. 

Story's  Eq.  PI.  §  295.  17,   30  ;    Prudential    Assurance    Co.    v. 

•  Cowtan    v.    Williams,   9    Ves.    107  ;  Thomas,  L.  R.  8  Ch.  App.  74,  77. 
Clarke  i\  Byne,  13  Ves.  386 ;  Hoggart  v.        H  Spring  v.  South  Carolina  Ins.  Co., 
Cutts,  1  Cr.  &  Ph.  197,  205.  8  Wheat.  268. 


144  BILLS.  [CHAP.  IV. 

determine  between  them  without  hazard  to  himself.  It  should 
offer  to  deposit  the  fund  or  other  property  in  the  custod}^  of  the 
court ;  and  conclude  with  a  prayer  that  upon  such  deposit  the 
defendants  may  be  enjoined  from  further  molesting  him  about 
the  matter  in  question ;  that  they  be  required  to  interplead  and 
settle  their  respective  rights  among  themselves;  and  that  he  may 
have  his  costs  out  of  the  fund,  if  there  be  one,  otherwise  from 
the  defendants.15  The  bill  must  be  accompanied  by  an  affidavit ; 
which,  when  filed  by  a  natural  person,  should  be  sworn  to  by 
him,  and  state  that  "  this  bill  is  not  filed  in  collusion  with  either 
of  the  defendants  named,  but  merely  of  his  own  accord  for  relief 
in  this  Honorable  Court."  16  If  a  corporation  be  the  complainant, 
one  of  its  officers  should  make  the  affidavit,  swearing  that,  to  the 
best  of  his  knowledge  and  belief,  the  corporation  does  not  col- 
lude with  either  of  the  defendants.17  The  omission  of  the  affidavit 
is  a  ground  for  a  demurrer.18  The  bill  should  also  conform  to 
the  provisions  of  the  rules  regulating  original  bills.  No  other 
step  can  be  taken  in  the  cause  until  after  deposit  in  court  of  the 
fund  or  other  property  in  dispute.19  It  has,  however,  been  held 
in  England  that  a  bill  is  not  demurrable  for  the  omission  of  an 
offer  so  to  do.20  It  is  better  practice  to  obtain  an  order  ex  parte 
permitting  such  payment.21  When  that  is  done,  an  injunction 
will  be  granted  resti'aining  the  defendants  from  suing  the  plain- 
tiff, and  from  continuing  any  action  already  begun  touching  the 
matter  in  dispute.22  The  injunction  is  usually  granted  to  take 
effect  upon  payment  of  the  fund  into  court.23  Under  special 
circumstances,  however,  a  stay  order  might  be  granted  until  the 
complainant  had  an  opportunity  to  do  so.24  Upon  an  argument 
to  dissolve  this  injunction  before  hearing,  it  seems  that  the  defend- 
ants cannot  contradict  the  affidavit  that  there  is  no  collusion;25 
but  a  reference  may  be  directed  when  such  a  charge  is  made, 

15  Mitford's  Eq.  PI.  ch.  1 ;  Story's  Eq.  21  Williams   v.  Walker,  2  Richardson 
PI  §§  291-297.  Eq.  (S.  C.)  291. 

16  Metcalf  v.  Hervey,  1  Ves.  Sen.  248.  22  Sieveking  v.  Behrens,  2  Myl.  &  Cr. 

17  Bignold  i;  Audland,  11  Simons,  23.  581. 

"  Metcalf  v.  Hervey,  1  Ves.  Sen.  248 ;  23  Sieveking  v.  Behrens,  2  Myl.  &  Cr. 

Tobin  v.  Wilson,  3  J.  J.  Marsh.  (Ky.)  67 ;  581. 

Mitford's  Eq.  PI.  ch.  1.  a  Sieveking  v.  Behrens,  2  Myl.  &  Cr. 

19  Meux  v.  Bell,  6  Simons,  175 ;  Wil-  581 ;  U.  S.  R.  S.  §  718. 

Hams  v.  Walker,  2  Richardson  Eq.  (S.C.)  2S  Stevenson  v.  Anderson,  2  Ves.  &  B. 
291.  407 ;  Manby  v.  Robinson,  L.  R.  4  Oh.  App. 

20  Meux  v.  Bell,  6  Simons,  175.  347 ;  Fahie  t;.  Lindsay,  8  Oreg.  474. 


§  88.]  BILLS   OF  INTERPLEADER.  145 

and  at  the  hearing  collusion  may  be  shown.26  In  England,  a  bill 
of  interpleader  can  be  successfully  maintained  though  all  the  de- 
fendants are  beyond  the  jurisdiction  of  the  court.27  Such  suits  are 
usually  heard  on  bill  and  answers ;  although  there  is  no  reason 
why  testimony  should  not  be  taken.  If  at  the  hearing  the  cause 
is  ripe  for  a  decision,  the  court  will  then  decide  the  controversy 
between  the  defendants.28  If  not,  it  will  enter  a  decree  dis- 
missing the  plaintiff  with  his  costs,  enjoining  the  defendants  in 
accordance  with  the  prayer  of  the  bill,  and  directing  them  to 
interplead.29  If  the  claims  on  both  sides  are  purely  legal,  an 
action  or  an  issue  at  law-  will  usually  be  directed.  If  one  of 
them  is  of  an  equitable  nature,  and  sometimes  even  when  both 
are  legal,  a  reference  to  a  master  is  usually  directed.30  At  the 
hearing,  each  defendant  may  read  the  other's  answer  against 
him.31  If  one  of  them  has  allowed  the  bill  to  be  taken  as  con- 
fessed against  him,  this  is  considered  as  an  admission  that  the 
bill  was  properly  filed,  and  that  he  has  made  an  improper  claim 
against  the  fund.32  If,  after  answer,  one  of  them  defaults  at  the 
hearing,  the  court  will  enter  a  decree  after  hearing  the  other.33 
The  plaintiff,  if  successful,  is  entitled  to  his  costs  out  of  the  fund, 
if  there  be  one.34  Otherwise,  from  the  defendant  whose  claim 
is  finally  held  bad.35  These  costs,  as  well  as  the  costs  of  the 
successful  defendant,  must  eventually  be  paid  by  him  whose 
claim  is  finally  dismissed.36  It  has  been  said  that  when  the  bill 
is  dismissed,  there  can  be  no  further  proceedings  in  the  cause 
as  between  the  defendants ;  not  even  by  consent ;  inasmuch  as 
the  court  has  thereby  lost  jurisdiction.37  After  a  decree  in  the 
plaintiff's  favor,  the  cause  is  terminated  as  to  him  ;  and  in  case 

26  Manby  v.  Robinson,  L.  R.  4  Ch.  App.        81  Bowyer  v.  Pritchard,  11  Price,  103; 
347 ;  Langston  v.  Boylston,  2  Ves.  Jr.  101 ;     Daniell's  Ch.  Pr.  1765. 

Dungey  v.  Angove,  2  Ves.  Jr.  304.  32  Badeau  v.  Rogers,  2  Paige  (N.  Y.), 

27  Martini  us  y.  Helrauth,  G.Cooper,  248;     209;  Fairbrother  v.  Prattent,  1  Daniel, 
Stevenson  v.  Anderson,  2  Ves.  &  B.  412  ;     64. 

Contra,  Herndon  v.  Ridgeway,  17  How.  &  Hodges  v.  Smith,  1  Cox  Eq.  357. 

424;  and  see  §96.  **  Dunlop   v.   Hubbard,    19  Ves.  205; 

28  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1765;  Dowson  v.  Hardeastle,  2  Cox  Eq.  279. 
Angell  v.  Hadden,  16  Ves.  202 ;  City  Bank  ™  Aldridge  v.  Mesner,  6  Ves.  418  ;  Ma- 
tt. Bangs,  2  Paige  (N.  Y.),  570.  son  v.  Hamilton,  5  Simons,  19;   Daniell's 

»  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1765;  Ch.  Pr.  1767. 

Angell  v.   Hadden,   16  Ves.   202;    City  30  Mason  v.  Hamilton,  5  Simons,   10; 

Bank  v.  Bangs,  2  Paige  (N.  Y.),  570.  Cowtan  v.  Williams,  9  Ves.  107  ;  Daniell's 

80  Daniell's  Ch.  Pr.  1765;  Story's  Eq.  Ch.  Pr.  (2d  Am.  ed.)  1766,  1767. 

Jur.  §  822 ;  Angell  v.  Hadden,  16  Ves.  202  ;  87  Jennings  v.  Nugent,  1  Molloy,  134. 
City  Bank  v.  Bangs,  2  Paige  (N.  Y.),  570. 

10 


146  BILLS.  [CHAP.  IV. 

of  his  subsequent  death  the  cause  will  proceed  without  a 
revivor.38 

§  89.  Bills  in  the  Nature  of  Interpleader.  —  Where  the  plaintiff 
claims  for  himself  some  interest  in  the  fund  or  matter  in  ques- 
tion, or  does  not  admit  the  whole  of  a  defendant's  claim,  or  the 
defendants  claim  different  amounts,  although  a  bill  of  inter- 
pleader may  not,  a  bill  in  the  nature  of  an  interpleader  may, 
perhaps,  be  sustained.1  The  frame  of  such  a  bill  and  the  pro- 
ceedings thereunder  should  conform,  mutatis  mutandis,  to  those 
of  a  strict  bill  of  interpleader.  After  payment  of  what  he  admits 
to  be  due,  a  decree  may  be  entered  discharging  the  plaintiff  as 
to  that,  and  directing  the  suit,  or,  if  an  action  at  law  had  pre- 
viously been  begun,  the  latter,  to  proceed  till  his  disputed  rights 
are  determined.2 

§  90.  Bills  of  Certiorari.  —  A  bill  of  certiorari  was  a  bill  filed 
in  a  superior  court  of  equity  for  the  purpose  of  removing  thither 
a  suit  in  equity  pending  in  an  inferior  court,  on  account  of  some 
alleged  incompetency  in  the  latter  or  some  defect  in  its  proceed- 
ings.1 Such  a  bill  first  stated  the  proceedings  in  the  inferior 
court ;  then  the  cause  of  its  incompetency,  as,  for  example,  that 
the  subject  of  the  action  or  the  parties  were  not  within  its  juris- 
diction, or  that,  for  some  other  cause,  equal  justice  could  not  be 
done  there  ;  and  finally  prayed  a  writ  of  certiorari,  to  certify  and 
remove  the  record  and  the  cause  to  the  superior  court.2  It  did 
not  pray  that  the  defendant  should  answer,  or  even  that  he 
should  appear  to  the  bill,  and,  consequently,  prayed  for  no  writ 
of  subpoena,  although  a  subpoena  had  to  be  sued  out  and  served.3 
It  was  considered  as  an  original  bill,  and  filed  as  such  in  the 
superior  court.  Thereupon,  the  plaintiff  was  required  to  exe- 
cute a  bond  in  the  penalty  of  <£100,  with  one  surety  conditioned 
to  prove  the  suggestions  of  the  bill  in  fourteen  days.  A  sub- 
poena was  next  sued  out  and  served  ;  and  a  writ  of  certiorari 
issued  directed  to  the  judge  of  the  inferior  court,  requiring  him 

83  Anon.,  1  Vern.  351 ;  Jennings  v.  Nu-  2  City  Bank  v.  Bangs,  2  Paige  (N.  Y.), 

gent,   1   Molloy,   134 ;    Daniell's  Ch.  Pr.  570. 

1765.  §  90.   l  Mitford's  PI.  ch.  1 ;  Story's  Eq. 

§  89.   i  Dorn  v.  Fox,  61  N.  Y.  264  ;  Mo-  PI.  §  298. 

hawk  &  Hudson  R.  R.  Co.  v.  Clute,  4  2  Story's  Eq.  PI.  §  298. 

Paige  (N.Y.),  385 ;  Story's  Eq.  PI.  §  297  b  ;  »  Story's  Eq.  PI.  §  298  ;  Mitford's  PI. 

Daniell's    Ch.   Pr.    (2d    Am.  ed.)    1768.  ch.  1. 
Contra,  New  England  Mutual  Life  Ins.  Co 
v.  Odell,  50  Hun.  (57  N.  Y.  S.  C.  R.)  279. 


§  90.]  BILLS   OF   CERTIORARI.  147 

to  certify  or  send  to  the  court  issuing  the  writ  the  tenor  of  the 
bill  or  plaint  below,  with  the  process  or  proceedings  thereon. 
The  writ  having  been  served  and  returned,  together  with  the 
required  statement  and  papers,  an  order  directing  them  to  be 
filed  was  then  obtained.  Testimony  to  prove  or  disprove  the 
suggestions  of  the  bill  was  immediately  taken,  and  the  cause 
referred  to  a  master  to  report  whether  they  were  proven  or  no. 
This  was  required  to  be  done  within  fourteen  days,  unless  the 
court  specially  enlarged  the  time.  If  the  allegations  were  proved 
and  showed  a  sufficient  reason  for  retaining  the  suit,  an  order  to 
retain  the  bill  was  granted  ;  and  the  defendant  below  was  obliged 
to  answer,  and  the  cause  removed  proceeded  in  the  same  manner 
as  if  it  had  been  originally  instituted  in  the  superior  court.4  In 
no  reported  case  has  such  a  bill  been  filed  in  a  court  of  the 
United  States,  although  petitions  for  writs  of  certiorari  in  pro- 
ceedings at  common  law  are  not  uncommon. 

*  Hinde's  Pr.  28-32  and  581,  582. 


148  SUBPOENAS   TO   APPEAK   AND  ANSWER.  [CHAP.  V. 


CHAPTER  V. 

STTBPCENAS   TO   APPEAR  AND   ANSWER. 

§  91.  Definition  and  Form  of  Subpoena.  —  The  first  process  in  a 
court  of  equity  is  the  subpoena,  which  is  a  writ  requiring  the 
defendant  to  appear  and  answer  the  bill  under  a  penalty  therein 
expressed.  A  similar  writ,  called  quibusdam  certis  de  causis,  in 
the  form  of  a  subpoena  without  any  penalty,  is  also  found  in 
some  of  the  early  English  chancery  cases.1  The  process  of  sub- 
poena constitutes  the  proper  mesne  process  in  all  suits  in  equity, 
in  the  first  instance,  to  require  the  defendant  to  appear  and 
answer  the  exigency  of  the  bill.2  These  writs,  like  all  writs  and 
processes  issuing  from  the  courts  of  the  United  States,  must  be 
under  the  seal  of  the  court  from  which  they  issue,  and  signed  by 
the  clerk  thereof.  Those  issuing  from  the  Supreme  Court  or  a 
Circuit  Court  must  bear  teste  of  the  Chief  Justice  of  the  United 
States,  or,  when  that  office  is  vacant,  of  the  associate  justice  next 
in  precedence  ;  and  those  issuing  from  a  District  Court  must  bear 
teste  of  the  judge,  or,  when  that  office  is  vacant,  of  the  clerk 
thereof.3  When  issued  from  the  Supreme  Court  the  writ  must  be 
in  the  name  of  the  President  of  the  United  States.4  It  must  be  re- 
turnable into  the  clerk's  office  the  next  rule  day,  or,  at  the  election 
of  the  plaintiff,  the  next  rule  day  but  one,  occurring  twenty  days 
from  the  time  of  the  issue  thereof,5  except  in  the  Supreme  Court 
when  the  return  day  must  be  at  least  sixty  days  after  service 
of  the  writ.6  "  At  the  bottom  of  the  subpoena  shall  be  placed  a 
memorandum  that  the  defendant  is  to  enter  his  appearance  in  the 
suit  in  the  clerk's  office  on  or  before  the  day  at  which  the  writ  is 
returnable,  otherwise  the  bill  may  be  taken  pro  confesso."  "  The 
penalty  named  in  the  writ  is  now  usually  two  hundred  and  fifty 

§  91.   *  Judge  O.  W.  Holmes,  Jr.,  in  an        8  U.  S.  R.  S.  §  911. 
article  on  Early  English  Equity,  1  Law        4  Rule  5  of  the  Supreme  Court  of  the 

Quarterly  Review,  162,  note  2,  citing  Pal-  United  States, 
grave,  King's  Council,  131,  132,  note  x ;        5  Rule  12. 
Scaldewell  v.  Stormesworth,  1  Cal.  Ch.  5.        6  Supreme  Court  Rule  5. 

2  Rule  7.  »  Rule  12. 


§  91.]  DEFINITION   AND   FOEM   OF   SUBPCENA.  149 

dollars  ;  in  earlier  times  it  might  be  life  or  limb  ;  8  but  it  is  never 
enforced ;  since  the  taking  of  the  bill  as  confessed  affords  a  far 
more  substantial  remedy.  The  subpoena  should  be  addressed  to 
the  defendant  against  whom  it  is  issued.9  "When  there  are 
more  than  one  defendant,  a  writ  of  subpoena  may,  at  the  option 
of  the  plaintiff,  be  sued  out  separately  for  each  defendant,  except 
in  the  case  of  husband  and  wife  defendants,  or  a  joint  subpoena 
against  all  the  defendants."  10  If  a  defendant  is  sued  in  a  repre- 
sentative  capacity,  or  in  both  an  individual  and  a  representative 
capacity,  he  should  be  so  described  in  the  subpoena;  which 
should  in  this  respect  follow  the  prayer  of  process  in  the  bill.11 
Otherwise,  the  service  of  the  subpoena  may  be  set  aside  upon 
motion,  as  issued  without  authority.12  Such  a  defect  will,  how- 
ever, be  waived,  if  the  defendant  enter  his  general  appearance  in 
his  representative  capacity.13 

The  usual  form  of  a  subpoena  in  a  circuit  court  of  the  United 
States  is  substantially  as  follows:  — 

The  President  of  the  United  States  of  America,  to  John  Aber  : 

Greeting,  —  You  are  hereby  commanded  that  you  personally  appear 
before  the  Judges  of  the  Circuit  Court  of  the  United  States  of  America, 
for  the  Southern  District  of  New  York,  in  the  Second  Circuit  Court,  in 
Equity,  on  the  first  Monday  of  December,  A.D.  1889,  wherever  the  said 
Court  shall  then  be,  to  answer  a  bill  of  complaint  exhibited  against  you 
in  the  said  court  by  Archibald  Brown,  and  do  further  and  receive 
what  the  said  Court  shall  have  considered  in  that  behalf.  And  this 
you  are  not  to  omit  under  the  penalty  on  you  of  two  hundred  and 
fifty  dollars. 

Witness,  Honorable  MELVILLE  W.  FULLER,  Justice  of  the 
United  States  at  the  City  of  New  York,  on  the  first  day  of  November 
in  the  year  one  thousand  eight  hundred  and  eighty-nine,  and  of  the 
independence  of  the  United  States  of  America,  the  one  hundred  and 
thirteenth. 

Robert  Jones,  Complainant's  SoVr,  John  A.  Shields,  Clerk. 

8  Judge  O.   W.   Holmes,    Jr.,   in    an  73 ;  Brasher  v.  Van  Cortlandt,  2  J.  Ch. 

article  on  Early  English  Equity,  1  Law  (N.  Y.)  247. 

Quarterly  Review,  162,  note  2,  citing  1  12  Walton   v.    Herbert,    3    Green   Ch. 

Proceedings  Privy  Council  (21  R.  2,  a.  d.  (N.  J.)  73  ;  Brasher  v.  Van  Cortlandt,  2  J. 

1397).  Ch.  (N.  Y.)  242,  247. 

9  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  495.  13  Walton    v.   Herbert,    3    Green    Ch. 

10  Rule  12.  (N.  J.)  73  ;  Brasher  v.  Van  Cortlandt,  2  J. 

11  Carter    v.    Ingraham,   43   Ala.   78;  Ch.  (N.  Y.)  242,  247;  Buerk  v.  Imhaeuser, 
Walton  v.  Herbert,  3  Green  Ch.   (N.  J.)  8  Fed.  R.  457. 


150  SUBPCENAS   TO   APPEAR   AND   ANSWER.  [CHAP.  V. 

The  Defendant  is  required  to  enter  appearance  in  the  above  cause 
in  the  Clerk's  office  of  this  Court  on  or  before  the  first  Monday  of 
December,  1889,  or  the  bill  will  be  taken  pro  confesso  against  him. 

John  A.  Shields,  Clerk. 

§  92.  issue  of  the  Subpoena.  —  No  process  of  subpoena  can 
issue  from  the  clerk's  office  in  any  suit  in  equity  until  the  bill 
is  filed  in  the  office.1  Whenever  a  bill  is  filed  the  clerk  must 
issue  the  process  of  subpoena  thereon,  as  of  course,  upon  the 
application  of  the  plaintiff.2  The  signature  of  counsel  is  a  suf- 
ficient warrant  for  his  so  doing.  A  praecipe,  or  written  order  for 
the  subpoena,  signed  by  the  attorney  is  usually  first  given  him. 
In  the  early  times,  the  bill  was  first  examined  by  one  of  the 
masters  in  chancery,  whose  duty  it  was  to  determine  whether  to 
dismiss  the  bill  by  original  or  to  retain  it  by  subpoena.3  The 
present  practice,  it  is  said,  originated  when  Sir  Thomas  More 
was  Keeper.4  In  the  Supreme  Court  of  the  United  States  a 
motion  for  leave  to  file  a  bill  must  first  be  made.  This  is  usually 
heard  ex  parte;5  but  when  leave  was  asked  to  file  a  bill  against 
the  President  of  the  United  States,  under  the  peculiar  circum- 
stances of  that  case  it  was  thought  proper  that  argument  should 
be  heard  against  the  motion  for  leave.6  The  court  refused  to 
extend  this  exception  so  as  to  include  a  suit  by  a  State  against 
General  Grant  when  in  command  of  the  army,  but  then  required 
ten  printed  copies  of  the  bill  to  be  filed  with  the  clerk  before  the 
hearing,  which  it  determined  should  be  the  regular  practice  in 
all  cases  of  original  jurisdiction  brought  before  it.7  Whenever 
any  subpoena  is  returned  not  executed  as  to  any  defendant,  the 
plaintiff  is  entitled  to  another  subpoena,  toties  quoties,  against 
such  defendant,  if  he  requires  it,  until  due  service  is  made."  8 

§  93.  "When  a  Subpoena  is  necessary.  —  No  defendant  can  be 
brought  before  the  court  against  his  will  without  the  service  of 
a  subpoena  upon  him.1     A  general  appearance  will,  however, 

§  92.  1  Rule  11.  5  State  of  Georgia  v.  Grant,  6  "Wall. 

2  Rule  12.  241. 

8  Treatise  on  Masters  of  the  Ohaun-         6  State  of  Georgia  v.  Grant,  6  Wall, 

eerie,  1  Harg.  Law  Tracts,  302 ;  Daniell's  241, 242  ;  State  of  Mississippi  v.  Johnson, 

Ch.  Pr.  (2d  Am.  ed.)  357.  4  Wall.  475. 

4  Treatise  on  Masters  of  the  Chaun-         "  State  of  Georgia  v.  Grant,  6  Wall, 

eerie,  1  Harg.  Law  Tracts,  302  ;  Daniell's  241. 
Chancery  Practice  (2d  American  edition),         8  Rule  14. 
357.  §  93.  i  Rule  7. 


§  94]  PERSONAL   SERVICE   OF   A   SUBPCENA.  151 

waive  such  an  omission.2  After  a  bill  has  been  amended  with 
no  further  change  than  the  bringing  in  of  new  parties  defendant, 
they  alone  need  be  served  with  a  new  subpoena.3  If,  however, 
it  be  otherwise  substantially  amended,  according  to  the  English 
practice  a  subpoena  to  answer  the  amendments  had  to  be  served 
upon  all  the  defendants.4  A  subpoena  to  appear  and  answer  a 
bill  of  revivor  should  be  substantially  in  the  form  of  a  subpoena 
to  an  original  bill,  except  that  it  requires  the  proper  representa- 
tives of  the  party  against  whom  it  issues  to  appear  at  the  next 
rule-day,  which  shall  occur  after  fourteen  days  from  the  time  of 
the  service  of  the  process,  and  there  show  cause,  if  any  they  have, 
why  the  cause  should  not  be  revived.5 

§  94.  Personal  Service  of  a  Subpoena.  —  Except  in  certain  ex- 
ceptional cases  the  service  of  the  subpoena  must  be  personal. 
It  must  be  made  by  the  marshal  of  the  district  or  his  deputy, 
or  by  some  other  person  specially  appointed  by  the  court  for 
that  purpose,  and  not  otherwise.1  "  When  the  marshal  or  his 
deputy  is  a  party  in  any  cause,  the  writs  and  praecepts  therein 
shall  be  directed  to  such  disinterested  person  as  the  court  or  any 
justice  or  judge  thereof  may  appoint,  and  the  person  so  ap- 
pointed may  execute  and  return  them."2  If  the  marshal  or  his 
deputy  make  the  service,  his  unverified  return  is  sufficient,3  and 
it  has  been  said  cannot  be  contradicted,4  the  only  remedy  being 
an  action  against  the  officer  for  a  false  return.5  But  it  is  capable 
of  subsequent  amendment.6  The  return  should  state  where  the 
service  was  made,  if  the  defendant  reside  without  the  district,7 
and  probably  in  any  event.  If  another  than  the  marshal  or  his 
deputy  serve  the  subpoena,  proof  must  be  made  by  the  affidavit 
of  the  process-server.8  The  indorsement  by  the  defendant  upon 
a  subpoena  issued  from  the  circuit  court  for  Vermont :  "  Wash- 
ington, D.C.,  October  18th,  1883.    I  hereby  accept  service  of  the 

2  Buerk  v.  Imhaeuser,  8  Fed.  R.  457.       101  ;  Flioenix  Ins.  Co.  v.  Wulf,  1  Fed.  R. 

3  Longworth   v.   Taylor,   1    McLean,     775;  Rule  16. 

514;    Angerstein   v.  Clarke,   1   Ves.   Jr.  4  Von  Roy   v.  Blackman,  3   Woods, 

250;  Skeffington  v. ,  4  Ves.  GO.  98,  100. 

4  Cooke  y.  Davies,  T.  &.R.  309;  Bram-  5  Von  Roy  v.  Blackman,  3  Woods, 
ston  v.  Carter,  2  Simons,  458.     See  Ken-  98,  100. 

dall  v.  Beckett,  1  Russ.  152.  6  Phoenix  Ins.  Co.  v.  Wulf,  1  Fed.  R. 

5  Rule  56.  775. 

§94.   i  Rule   15;    Deacon  v.  Sewing  "  Allen  v.  Blunt,  1  Blatchf .  480,  487 ; 

Machine  Co.,  14  Reporter,  43.  Thayer  v.  Wales,  5  Fisher's  Pat.  Cas.  448. 

2  U.  S.  R.  S.  §  922.  8  Rule  15. 
8  Von  Roy  v.  Blackman,  3  Woods,  98, 


152  SUBPCENAS   TO   APPEAR   AND   ANSWER.  [CHAP.  V. 

within  subpoena,  to  have  the  same  effect  as  if  duly  served  upon  me 
by  a  proper  officer,  and  I  do  hereby  acknowledge  the  receipt  of  a 
copy  thereof.  E.  M.  Marble,  Com'r  of  Patents,"  has  been  held  to 
be  nothing  more  than  that  "  the  commissioner  admits  service  with 
the  same  effect  it  would  have  if  made  by  an  officer  of  the  Dis- 
trict of  Columbia,"  and  not  to  be  a  waiver  of  the  objection  that 
the  subpoena  could  not  properly  be  served  beyond  the  jurisdic- 
tion of  the  court  whence  it  issued.9  "  The  service  of  all  sub- 
poenas shall  be  by  a  delivery  of  a  copy  thereof  by  the  officer 
serving  the  same  to  the  defendant  personally,  or  by  leaving  a 
copy  thereof  at  the  dwelling-house  or  usual  place  of  abode  of 
each  defendant  with  some  adult  person  who  is  a  member  or  resi- 
dent of  the  family."  10  When  a  husband  and  wife  are  parties  a 
copy  must  be  served  upon  each,  although  the  former  practice 
was  complied  with  by  service  upon  the  husband  alone.11  Service 
at  the  door  of  the  defendant's  dwelling  has  been  held  a  sufficient 
compliance  with  the  rule.12  In  an  English  case,  where  infant 
defendants  were  secreted,  service  upon  their  mother  was  allowed, 
and  held  sufficient.13  Chief  Baron  Gilbert,  in  his  "  Forum  Ro- 
manura,"  says  of  the  subpoena:  "The  service  is  good  in  the 
night  or  on  Sunday,  if  it  be  before  the  time  of  the  return  ;  for 
this  being  only  process  of  notice,  and  not  to  arrest  the  parties,  it 
can  create  no  disturbance,  though  it  be  served  in  the  night  or  on 
Sunday."  14  It  has,  however,  since  been  held  in  England  that  a 
service  on  Sunday  may  be  set  aside.15  Personal  service  of  the 
subpoena  can  only  be  made  within  the  territorial  jurisdiction  of 
the  court,16  except  when  a  subpoena  issues  from  a  court  in  a 
State  which  is  divided  into  two  districts,  in  which  case,  it  seems, 
that  it  may  be  served  in  either  district  within  the  same  State.17 
"  Upon  the  return  of  the  subpoena  as  served  and  executed 
upon  any  defendant,  the  clerk  shall  enter  the  suit  upon  his 
docket  as  pending  in  the  court,  and  shall  state  the  time  of  the 
entry."  18 

9  Butterworth  v.  Hill,  114  U.  S.  128,  «  Smith  v.  Marshall,  2  Atk.  70. 

132,  133.  14  Gilbert's  Forum  Romanum  (Tyler's 

!°    Rule  13.     See  Phoenix  Ins.  Co.  v.  edition),  42. 

Wulf,  1  Fed.   R.  775;    Hyslop  v.  Hop-  15  Mackreth  v.  Nicholson,  19  Ves.  367. 

pock,  5  Ben.  447.  16  Tolandy.  Sprague,  12  Pet.  300,  328 ; 

11  O'Hara  v.  MacConnell,  93  U.  S.  150;  Picquet  v.  Swan,  5  Mason,  35;  Bourke 
Robinson  v.  Cathcart,  2  Cranch  C.  C.  590.  v.  Amison,  32  Fed.  R.  710. 

12  Phoenix  Ins.  Co.  v.  Wulf,  1  Fed.  R.  17  Winter  v.  Ludlow,  3  Phila.  (Pa.)  464. 
775.  18  Rule  16. 


§  95.]  SERVICE  UPON  CORPORATIONS.  153 

§  95.  Service  upon  Corporations.  —  If  the  United  States  is 
sought  to  be  made  a  party  defendant,  the  subpoena  should  be 
served  upon  the  attorney-general  or  the  district  attorney  of  the 
district  where  the  suit  is  brought.1  "  When  process  at  common 
law  or  in  equity  shall  issue  against  a  State,  the  same  shall  be 
served  on  the  governor,  or  chief  executive  magistrate,  and 
attorney-general  of  such  State."2  When  a  suit  is  brought 
against  a  domestic  corporation,  that  is,  one  chartered  within  the 
State  in  which  is  the  district  where  the  suit  is  brought,  the  sub- 
poena should  be  served  upon  one  of  its  officers,  or  perhaps  one  of 
its  members.3  The  State  practice  in  such  cases  although  not 
binding  upon  the  Federal  courts  furnishes  a  guide  which  they 
are  apt  to  follow.4  The  jurisdiction  of  the  Circuit  and  District 
Courts  of  the  United  States  over  foreign  corporations  is,  on  account 
of  the  obscurity  of  the  Judiciary  Act  of  1887,  a  doubtful  question.5 
The  weight  of  authority  seems  to  hold  that  when  the  jurisdic- 
tion is  vested  solely  upon  the  existence  of  a  Federal  question  in 
the  case,  such  a  court  has  no  jurisdiction  over  a  foreign  corpo- 
ration;6 but  that  when  jurisdiction  is  claimed  on  account  of  a 
difference  of  citizenship,  a  foreign  corporation  may  be  served 
with  process  provided  it  be  "  found  "  within  the  district.7  What 
constitutes  such  a  finding  is  a  matter  hard  accurately  to  define. 
If  a  State  statute  forbids  a  foreign  corporation  to  transact  business 
within  her  borders  except  upon  condition  that  the  corporation 
stipulate  to  allow  legal  process  to  be  served  upon  it,  and  the 
company  execute  such  a  stipulation,  which  is  not  in  express  terms 
restricted  to  the  process  of  a  State  court,  it  will  be  considered 
to  apply  to  the  Federal  courts,  and  a  subpoena  from  a  Federal 
court  may  be  served  upon  the  foreign  corporation  in  the  same 

§  95.   i  Hoffman's  Ch.  Pr.  108;    Dan-  Ry.  Co.  38  Fed.  R.  449;  and  Riddle  v. 

iell's  Ch.  Pr.  (2d  Am.  ed.)  517,  note  4.  N.  Y.  L.  E.  &  W.  R.  Co.  39  Fed.  R.  290 ; 

2  Supreme  Court  Rule  5 ;  Grayson  v.  and  see  §  22. 

Virginia,  3  Dall.  320.  6  St.  Louis,V.  &  T.  H.  R.  R  Co.  ?\Terre 

8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  501,  Haute  &  I.  R.  R.  Co  ,33  Fed.  R.  385,  386. 

and  note  2.     But  see  St.  Clair  v.  Cox,  See  County  of  Yuba  v.  Pioneer  Gold  Min- 

106  U.  S.  350,  359.  ing  Co.,  32  Fed.  R.  183. 

4  Thornburgh  v.  Savage  Mining  Co.,  "  Falesv.  Chicago,  M.  &  St.  P.  Ry.  Co., 

1  Pacific  Law  Mag.  267.  32  Fed.  R.  673;  Short  u.  Chicago,"  M.  & 

6  24  St.  at  L.,  ch.  373.     Cf.   Filli  v.  St.  P.  Ry.  Co.,  33  Fed.  R.  114;  St.  Louis, 

D.  L.  &  W.  R.  R.  Co.  37  Fed.  R.  65;  V.  &T.  H.  R.R.  Co  v.Terre  Haute  &  I.  R. 

Hohorst  v.  Hamburg  Amer.  Packet  Co.,  R.  Co.,  33  Fed.  R  385.    Contra,  County  of 

38  Fed.  R.  273;    and   Denton    v.  Inter-  Yuba    v.    Pioneer   Gold   Mining   Co.,  32 

national  Co.  of  Mexico,  36  Fed.  R.  1 ;  Fed.  R.  183. 
with  Zambrino  v.  Galveston,  H.  &  S.  A. 


154  SUBPCENAS   TO   APPEAR   AND   ANSWER.  [CHAP.  V. 

way  as  would  a  similar  process  of  a  State  tribunal.8  Such 
condition  and  stipulation  may  be  implied  as  well  as  expressed. 
If  a  State  permits  a  foreign  corporation  to  do  business  within 
her  limits,  and  at  the  same  time  provides  that  in  suits  against  it 
for  business  there  done,  process  shall  be  served  upon  its  agents, 
the  provision  is  deemed  to  be  a  condition  of  the  permission ;  and 
corporations  that  subsequently  do  business  in  the  State  are  to  be 
deemed  to  assent  to  such  condition  as  fully  as  though  they  had 
specially  authorized  their  agents  to  receive  service  of  the  pro- 
cess.9 "  Such  condition  must  not,  however,  encroach  upon  that 
principle  of  natural  justice  which  requires  notice  of  a  suit  to  a 
party  before  he  can  be  bound  by  it.  It  must  be  reasonable,  and 
the  service  provided  for  should  be  only  upon  such  agents  as 
may  be  properly  deemed  representatives  of  the  foreign  corpora- 
tion." 10  Service  upon  an  agent  who  stood  in  no  representative 
character  to  the  company,  whose  duties  were  limited  to  those  of 
a  subordinate  employe,  or  to  a  particular  transaction,  or  whose 
agency  had  ceased  when  the  matter  in  dispute  arose,  would, 
probably,  be  held  insufficient.11  In  order  thus  to  subject  itself 
to  the  service  of  process,  the  foreign  corporation  must  actually 
transact  business  in  the  district  where  the  suit  is  brought.12 
A  single  act  of  business,  such  as  the  making  of  a  contract  there 
for  the  sale  of  an  article  to  be  manufactured  elsewhere  and 
there  delivered,  would  not  be  sufficient,  "  when  there  was  no  pur- 
pose to  do  any  other  business  or  to  have  a  place  of  business  " 
within  the  district.13  So,  it  has  been  held,  that  the  presence  of 
the  principal  officers  of  a  corporation  in  a  foreign  State,  when 
they  have  with  them  property  of  the  corporation  for  the  purpose 
of  exhibition,  does  not  make  the  corporation  liable  to  the  service 

8  Ex  parte  Schollenberger,  96  TJ.  S.  &  S.  A.  Ry.  Co.  38  Fed.  R.  449 ;  Riddle 
369 ;  overruling  several  eases  to  the  con-  v.  N.  Y.  L.  E.  &  W.  R.  Co.  39  Fed.  R 
trary  previously  decided  in  the  Circuit  290 ;  Maxwell  v.  Atchison,  T.  &  S.  F.  R 
Courts.  Co.  37  Fed.  R.  286;  Filli  v.  D.  L.  &  W 

9  St  Clair  v.  Cox,  106  U.  S.  350,  356.  R.  R.  Co.  31  Fed.  R.  65;  Hohorst  v  Ham 

10  Mr.  Justice  Field  in  St.  Clair  v.  Cox,  burg  Amer.  Packet  Co.,  38  Fed.  R.  273 ; 
106  U.  S.  350,  356.  See  also  Hayden  v.  Denton  v.  International  Co.  of  Mexico, 
Androscoggin  Mills,  1  Fed.  R.  93;  Estes  36  Fed.  R.  1 ;  Block  v.  Atchison,  T.  &  S. 
v.  Belford,  22  Fed.  R.  275.  F.  R.  Co.  21  Fed.  R.  529. 

11  St.  Clair  v.  Cox,  106  U.  S.  350,  359,  1S  Cooper  Manuf.  Co.  v.  Ferguson,  113 
360 ;  Maxwell  v.  Atchison,  T.  &  S.  F.  R.  U.  S.  727,  735  ;  Good  Hope  Co.  v.  Rail- 
Co.  34  Fed.  R.  286.  way  Barb  Fencing  Co.,  22  Fed.  R.  635 ; 

12  Cooper  Manuf.  Co.  v.  Ferguson,  113     Maxwell  v.  Atchison,  T.  &  S.  F.  R.  R.  Co., 
U.  S.  727  ;  Hnyden  v.  Androscoggin  Mills,     34  Fed.  R.  286. 
1  Fed.  R.  93;*Zambrino  v.  Galveston,  H. 


§  96.]  SUBSTITUTED    SERVICE    OF   A   SUBPCENA.  155 

of  process  upon  them  there.14  The  lease  by  a  foreign  to  a  domes- 
tic corporation  of  personal  property,  and  the  payment  by  the 
latter  to  the  former  of  a  part  of  the  profits  derived  from  the  use 
of  such  property  within  the  jurisdiction  of  the  court,  does  not 
give  the  court  jurisdiction  over  the  former  corporation  upon 
service  of  a  subpoena  upon  the  latter  as  its  agent.15  It  has 
been  held,  at  circuit,  that  service  of  process  in  the  manner  pre- 
scribed by  the  State  practice  may  subject  a  foreign  corporation 
to  the  jurisdiction  of  the  Federal  court,  in  a  case  over  which  the 
State  courts  have  no  jurisdiction  because  the  cause  of  action 
arose  without  the  State.16  It  has  been  said,  however,  "  that  in 
the  absence  of  a  voluntary  appearance,  three  conditions  must 
concur  or  co-exist  in  order  to  give  the  Federal  courts  jurisdic- 
tion in  personam  over  a  corporation  created  without  the  territorial 
limits  of  the  State  in  which  the  court  is  held,  viz. :  (1)  It  must 
appear  as  a  matter  of  fact  that  the  corporation  is  carrying  on 
its  business  in  such  foreign  State  or  district ;  (2)  that  such  busi- 
ness is  transacted  or  managed  by  some  agent  or  officer  appointed 
by  and  representing  the  corporation  in  such  State  ;  and  (3)  the 
existence  of  some  local  law  making  such  corporation,  or  foreign 
corporations  generally,  amenable  to  suit  there,  as  a  condition, 
express  or  implied,  of  doing  business  in  the  State." 17 

§  96.  Substituted  Service  of  a  Subpcena.  —  Independently  of 
any  express  statutory  authority,  there  is  no  power  in  a  court 
of  equity  to  order  actual  personal  service  to  be  effected  upon  a 
defendant  beyond  its  territorial  jurisdiction ;  but,  in  a  few  cases, 
such  courts  have  for  more  than  a  century  assumed  the  power  of 
ordering  service  to  be  made  within  their  jurisdiction  upon  some 
person  for  the  absent  defendant,  and  have  treated  such  service 
as  valid.1  In  suits  to  stay  proceedings  at  law  in  the  same  court, 
the  service  of  a  subpoena  upon  the  attorney  of  the  plaintiff  at 
law  may  be  allowed,  and  will  then   bind  the  latter  if  he  be 

14  Carpenter  r.Westinghouse  Air  Brake  §96.   1  Hales  v.  Sutton,  1  Dickens,  26  ; 

Co.,  32  Fed.  R.  434.  s.  c.  sub  nom.  Hallett  v.  Sutton,  12  Simons, 

18  United  States  v.  American  Bell  Tele-  145,  note  ;  Carter  v.  De  Brune,  1  Dickens, 

phone  Co.,  29  Fed.  R.  17.  39 ;  Hyde  v.  Forster,  1  Dickens,  102 ;  Lady 

16  Carstairs  v.  Mechanics'  &  Traders'  Carrington  v.  Cantillon,  Bunbury,  107 ; 
Ins.  Co.  of  N.  Y.,  13  Fed.  R.  823.  Hobhouse  v.  Courtney,  12  Simons,  140, 

17  United  States  v.  American  Bell  Tele-  and  cases  there  cited;  Daniell's  Ch.  Pr. 
phone  Co.,  29  Fed.  R.  17,  35.    See  Max-  (2d  Am.  ed.)  502-508. 

well  v.  Atchison,  T.  &  S.  F.  R.  R.  Co., 
34  Fed.  R.  286,  289. 


156  SUBP02NAS   TO    APPEAR   AND   ANSWER.  [CHAP.  V 

beyond  the  territorial  jurisdiction  of  the  court.2  A  similar  prac- 
tice would  in  all  probability  be  allowed  in  serving  process  under 
bills  not  original ;  namely,  bills  of  revivor,  supplemental  bills, 
and  bills  of  revivor  and  supplement ;  which  are  nothing  more 
than  continuations  of  the  suits  upon  which  they  operate.3  So, 
under  a  bill  to  reform  an  insurance  policy  pending  an  action  at 
law  upon  the  policy,  a  subpoena  may  be  thus  served  upon  the 
attorney  for  the  party  to  the  action  at  law.4  The  Federal  courts 
have  refused  to  extend  this  class  of  cases  so  as  to  include  a  bill 
of  interpleader,  two  of  the  defendants  to  which  were  engaged  in 
an  action  between  themselves  in  the  same  court  concerning  the 
same  matter ; 5  although  in  England  such  a  mode  of  service 
might  have  been  allowed.6  Nor,  it  seems,  can  a  subpoena  thus 
be  served  under  a  bill  to  set  aside  a  sale  made  under  a  decree 
of  the  same  court  to  which  persons  are  joined  as  defendants 
who  were  not  parties  to  the  former  suit."  It  seems  also  that 
substituted  service  of  a  subpoena  to  appear  and  answer  to  a 
cross-bill  will  not  be  allowed.8  Certainly  not,  if  the  cross- 
bill seek  to  introduce  new  and  distinct  matters  into  the  oris- 
inal  suit.9  The  proper  practice  when  a  defendant  to  a  cross- 
bill cannot  be  served  personally  seems  to  be  to  procure  an 
order  staying  his  proceedings  in  the  original  cause  until  he 
answers  the  cross-bill.10  Substituted  service  was  also  allowed 
upon  the  agent  of  a  defendant  beyond  the  jurisdiction,  who 
had  authority  to  represent  the  latter  with  respect  to  the  prop- 
erty which  was  the  subject  of  the  suit.11     When  this  mode  of 

2  Dunn  v.  Clarke,  8  Pet.  1 ;  Hitner  v.  souri  Pacific  Ry.  Co.,  3  Fed.  R.  772  ;  s.  c. 
Suckley,  2  Wash.  465 ;  Eckert  v.  Bauert,  1  McCrary,  047 ;  s.  c.  on  appeal,  111  U.  S. 
4  Wash.  370 ;  Ward  v.  Seabry,  4  Wash.     505,  522. 

426 ;  Read  v.  Consequa,  4   Wash.   174 ;  8  Sawyer  v.  Gill,  3  Woodb.  &  M.  97  j 

Bartlett  v.  Sultan  of  Turkey,  19  Fed.  R.  Segee  v.  Thomas,  3  Blatchf.  11 ;  Hitner  v. 

346.    See  also  Logan  v.  Patrick,  5  Cranch,  Suckley,  2  Wash.  465 ;  Anderson  v.  Lewis, 

288  ;  Dunlap  v.  Stetson,  4  Mason,  349.  3  Brown  Ch.  C.  429  ;  Gardiner  v.  Mason, 

3  Norton  v.  Hepworth,  1  Hall  &  Twell,  4  Brown  Ch.  C.  478 ;  Waterton  v.  Croft, 
158  ;  Dunn  v.  Clarke,  8  Pet.  1.     But  see  5  Simons,  502. 


Henderson  v.  Meggs,  2  Brown  Ch.  C.  127 
Anderson  v.  Lewis,  3  Brown  Ch.  C.  429 
Gardiner  v.  Mason,  4  Brown  Ch.  C.  478 


9  Rubber  Co.  v.  Goodyear,  9  Wall. 
807  ;  Heath  v.  Erie  Ry.  Co.,  9  Blatchf. 
316. 


Waterton  v.  Croft,  5  Simons,  502.  10  Sawyer  v.  Gill,  3  W.  &  M.  97  ;  Segee 

4  Abraham  v.  North  German  Fire  Ins.  v.  Thomas,  3  Blatchf.  11 ;  Hitner  v.  Suck- 
Co.,  37  Fed.  R.  731.  ley,  2  Wash.  465;    Anderson  v.   Lewis, 

5  Herndon  v.  Ridgway,  17  How.  424.  3  Brown  Ch.  C.  429 ;  Gardiner  v.  Mason, 

6  Martinius  v.  Helmuth,  Cooper,  248 ;  4  Brown  Ch.  C.  478 ;  Waterton  v.  Croft, 
Stevenson  v.  Anderson,  2  Ves.  &  B.  112.  5  Simons,  502. 

7  Pacific  Railroad  of  Missouri  v.  Mis-  u  Hobhouse  v.  Courtney,  12  Simons, 


§  97.]  STATUTORY  SERVICE   OF  A   SUBPCENA.  157 

service  is  desired,  an  order  must  be  obtained  that  service  upon 
the  attorney  employed  in  the  former  suit  or  action  shall  be 
deemed  good  service.12  If  service  be  made  upon  the  attorney 
without  such  an  order  having  been  obtained,  it  may  be  set 
aside.13  The  motion  for  such  an  order  may  ordinarily  be  made 
ex  parte.1*  It  must  be  supported  by  an  affidavit,  setting  forth 
the  reasons  why  such  service  is  desired,  and  verifying  the  alle- 
gations of  the  bill  made  by  the  plaintiff  or  some  person  having 
personal  knowledge  of  the  facts  therein  stated.15  Written  ad- 
missions of  the  defendant  may,  however,  be  sufficient  to  support 
the  motion  without  such  affidavit.16  A  previous  request  of  the 
attorney  to  accept  service  of  the  subpoena  and  his  refusal  so  to 
do,  is  not  a  necessary  preliminary  to  such  a  motion.17 

§  97.  Statutory  Service  of  a  Subpoena.  —  The  statutes  of  the 
United  States,  which  in  this  respect  are  analogous  to  those  of 
England,1  provide,  "  That  when  in  any  suit,  commenced  in  any 
court  of  the  United  States,  to  enforce  any  legal  or  equitable  lien 
upon,  or  claim  to,  or  to  remove  any  incumbrance  or  lien  or  cloud 
upon  the  title  to  real  or  personal  property  within  the  district 
where  such  suit  is  brought,  one  or  more  of  the  defendants 
therein  shall  not  be  an  inhabitant  of,  or  found  within,  the  said 
district,  or  shall  not  voluntarily  appear  thereto,  it  shall  be  lawful 
for  the  court  to  make  an  order  directing  such  absent  defendant 
or  defendants  to  appear,  plead,  answer,  or  demur  by  a  day 
certain  to  be  designated,  which  order  shall  be  served  on  such 
absent  defendant  or  defendants,  if  practicable,  wherever  found, 
and  also  upon  the  person  or  persons  in  possession  or  charge  of 
said  property,  if  any  there  be  ;  or  where  such  personal  service 
upon  such  absent  defendant  or  defendants  is  not  practicable, 
such  order  shall  be  published  in  such  manner  as  the  court  may 
direct   not  less  than  once  a  week  for  six  consecutive  weeks ; 

140,  and  cases  cited.     But  see  U.  S.  R.  S.         16  Pacific  Railroad  of  Missouri  v.  Mis- 

§  793.  souri  Pacific  Ry.  Co .,  3  Fed.  R.  772 ;  s.  c. 

12  Pacific  Railroad  of  Missouri  v.  Mis-  1  McCrary,  647  ;  Delaney  v.  Wallis,  3 
souri  Pacific  Ry.  Co.,  3  Fed.  R.  772;  Brown's  C.  C.  12;  Stephen  v.  Cini,  4 
8.  c.  1  McCrary,  647;  Daniell's  Ch.  Pr.  Ves.  359 ;  Kenworthy  v.  Accunor,  3  Madd. 
(2d  Am.  ed.)  502.  550. 

13  Pacific  Railroad  of  Missouri  v.  Mis-  16  Royal  Exchange  Ins.  Co.  v.  Ward, 
souri  Pacific  Ry.  Co.,  3  Fed.  R.  772 ;  s.  c.  1  Fowler  Ex.  Pr.  225. 

1  McCrarv,  647.  17  French  v.  Roe,  13  Ves.  593. 

M  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  503.  §  97.   *  2  Wm.  IV.  c.  33;  4  &  5  Wm. 

But  see  Crew  v.  Martin,  1  Fowler  Ex.  IV.  c.  82. 
Pr.  225. 


158  SUBPffiNAS  TO  APPEAR  AND   ANSWEK.  [CHAP.  V. 

and  in  case  such  absent  defendant  shall  not  appear,  plead, 
answer,  or  demur  within  the  time  so  limited,  or  within  some 
further  time  to  be  allowed  by  the  court,  in  its  discretion,  and 
upon  proof  of  the  service  or  publication  of  said  order,  and  of 
the  performance  of  the  directions  contained  in  the  same,  it  shall 
be  lawful  for  the  court  to  entertain  jurisdiction  and  proceed  to 
the  hearing  and  adjudication  of  such  suit  in  the  same  manner  as 
if  such  absent  defendant  had  been  served  with  process  within 
the  said  district ;  but  said  adjudication  shall,  as  regards  said 
absent  defendant  or  defendants  without  appearance,  affect  only 
the  property  which  shall  have  been  the  subject  of  the  suit,  and 
under  the  jurisdiction  of  the  court  therein,  within  such  district; 
and  when  a  part  of  the  said  real  or  personal  property  against 
which  such  proceeding  shall  be  taken  shall  be  within  another 
district,  but  within  the  same  State,  said  suit  may  be  brought  in 
either  district  in  said  State  :  Provided,  however,  That  any  defend- 
ant or  defendants  not  actually  personally  notified  as  above  pro- 
vided may,  at  any  time  within  one  year  after  final  judgment  in 
any  suit  mentioned  in  this  section,  enter  his  appearance  in  said 
suit  in  said  circuit  court,  and  thereupon  the  said  court  shall 
make  an  order  setting  aside  the  judgment  therein,  and  permitting 
said  defendant  or  defendants  to  plead  therein  on  payment  by  him 
or  them  of  such  costs  as  the  court  shall  deem  just  ;  and  there- 
upon said  suit  shall  be  proceeded  with  to  final  judgment  accord- 
ing to  law."  2  A  subpoena  cannot  thus  be  served  when  the  main 
object  of  the  bill  is  for  an  accounting  by  an  absent  and  non- 
resident defendant,  although  there  is  also  a  prayer  for  the  ap- 
pointment of  a  receiver  of  property  within  the  district.3  It  has 
been  said,  that  a  claim  to  a  certain  number  of  undesignated 
shares  of  stock  in  a  corporation  chartered  within  the  district  is 
not  property  within  that  district  when  the  holder  of  the  legal 
title  to  the  stock  is  domiciled  elsewhere.4  An  absent  judg- 
ment debtor  may  thus  be  served  in  a  suit  by  the  creditor  to 
appropriate  his  assets.5  It  has  been  held  at  circuit :  that  an 
order  in  pursuance  of  this  statute  may  be  obtained  immediately 
on  filing  the  bill,   upon  proof  by  affidavit  that  the  defendant 

2  U.  S.  R.  S.  §  738;  as  amended  by         4  Kilgour  v.  New  Orleans  Gas-Light 
act  of  March  3,  1875,  ch.  137,  §  8,  (18  St.     Co.,  2  Woods,  144. 

at  L.  472.)  5  Brigham  v.  Luddington,  12  Blatchf. 

3  Ellis   v.   Reynolds,   35   Federal   Re-     237.     Compare  Picquet  v.  Swan,  5  Mason, 
porter,  394.  35;  s.  c.  5  Mason,  561. 


§  98.]      EXEMPTIONS  FROM  SERVICE  OF  A  SUBPOZNA.        159 

does  not  dwell  within  the  district,  and  cannot  be  served  or  found 
therein ; 6  that  the  day  named  for  his  appearance  need  not  be 
one  of  the  rule  days  of  the  court ; 7  that  personal  service  of 
the  order  must  be  made  in  all  cases  where  the  residence  of  the 
absent  defendant  is  known  or  can  be  ascertained,  or  service  upon 
him  can  be  made  within  a  reasonable  time  and  by  the  exercise  of 
reasonable  diligence  ;  and  that  its  service  by  publication  can 
only  be  authorized  upon  proof  by  affidavit  of  the  facts  showing 
that  personal  service  without  the  jurisdiction  is  impracticable.8 
If  the  absent  defendant  reside  in  another  district  of  the  United 
States,  the  safer  practice  is  to  obtain  an  order  directing  the 
marshal  of  that  district  to  serve  him.9 

§  98.  Exemptions  from  Service  of  a  Subpoena.  —  Chief  Justice 
Marshall,  in  the  course  of  the  trial  of  Aaron  Burr,  ordered  that 
a  subpoena  duces  tecum  should  issue  against  President  Jefferson. 
Jefferson,  however,  refused  to  obey  the  subpoena,  while  express- 
ing his  perfect  willingness  to  furnish  the  paper  desired,  if  re- 
quested in  what  he  considered  a  proper  way.  The  dispute  went 
no  farther.1  Subsequently,  a  motion  was  made  for  leave  to  file 
a  bill  in  the  Supreme  Court,  praying  for  an  injunction  against 
President  Johnson  to  restrain  him  from  executing  the  reconstruc- 
tion laws.  The  attorney-general  then  took  the  position  that  the 
President  was  not  amenable  to  process ;  but  that  point  was  not 
then  and  has  not  since  been  decided.2  No  other  officer  or  person 
has  been  claimed  to  be  above  the  law.  The  Federal  Constitution 
provides  that  senators  arid  representatives  "  shall  in  all  cases, 
except  Treason,  Felony,  and  Breach  of  the  Peace,  be  privileged 
from  Arrest  during  their  Attendance  at  the  Session  of  their  re- 
spective Houses,  and  in  going  to  and  returning  from  the  same."3 
This  has  been  construed  at  circuit  to  exempt  them  from  service 
of  process,  unaccompanied  by  arrest  of  the  person,  when  on  their 
way  to  attend  a  session  of  Congress ; 4  and  it  has  been  further 
held  that  such  exemption  is  not  lost  by  a  slight  deviation  from 
the  most  direct  road  to  the  capital.5  In  certain  cases  indi- 
viduals are  temporarily  exempt  from  the  service  of  process.     A 

6  Forsyth  v.  Pierson,  9  Fed.   R.  801.  §  98.    1  Burr's  Trial. 

But  see  Bronson  v.  Keokuk,  2  Dill.  498.  2  Mississippi  v.  Johnson,  4  Wall.  475\ 

7  Forsyth  v.  Pierson,  9  Fed.  R.  801.  See  Jefferson's  Works,  vol.  v.  p.  102. 

8  Bronson  v.  Keokuk,  2  Dill.  498.  3  Const.  Art.  I.  §  6. 

9  Bronson    v.    Keokuk,   2    Dill.  498 ;  4  Miner  v.  Markham,  28  Fed.  R.  387. 
Forsyth  v.  Pierson,  9  Fed.  R.  801.  6  Miner  v.  Markham,  28  Fed.  R.  387. 


1G0  SUBPCENAS    TO   APPEAR   AND   ANSWER.  [CHAP.  V. 

person  temporarily  within  the  district  for  the  purpose  of  at- 
tending, either  as  witness,6  party,7  attorney,  or  counsel,8  a  trial 
or  other  proceeding,9  civil  or  criminal,10  in  a  State  n  or  Fed- 
eral 12  court,  is,  while  there,  exempt  from  the  service  of  process 
eundo,  morando,  et  redeundo.  A  similar  exemption  would  prob- 
ably be  applied  to  any  person  while  temporarily  within  the 
district  in  the  discharge  of  a  public  duty.13  The  privilege  of  a 
witness  does  not  exempt  him  from  liability  to  service  in  a 
suit  arising  out  of  his  acts  upon  that  same  visit  to  the  jurisdic- 
tion.14 A  Federal  court  will  not  punish  as  a  contempt  the 
arrest  or  service  of  process  by  a  State  court  upon  a  foreign 
witness  in  attendance  before  it ; 15  though  it  might  perhaps 
upon  habeas  corpus  discharge  the  witness  from  such  arrest,16 
or  punish  the  party  who  molested  the  witness,  by  a  stay  of 
proceedings  in  a  case  pending  between  him  and  the  witness 
in  the  Federal  court.17  If  a  person  be  fraudulently  enticed 
within  the  district  and  then  served  with  process  by  those  who 
thus  induced  him  to  come,  the  service  may  be  set  aside.18  In 
one  case,  when  a  man  was  induced  by  a  forged  telegram  to  enter 
the  jurisdiction  of  the  court,  the  party  who  served  him  there  was 
held  to  be  presumptively  connected  with  the  fraud.19 

6  Person  v.  Grier,  66  N.  Y.  124,  and  Record,  541 ;  Brooks  v.  Farwell,  2  Mc- 
cases  there  cited ;  Kauffrnan  v.  Kennedy,  Crary,  220  ;  s.  c.  4  Fed.  R.  167  ;  Bridges 
25  Fed.  R.  785.  v.  Sheldon,  7  Fed.  R.  17;    Matthews  v. 

7  Parker  v.  Hotchkiss,  1  Wall.  Jr.  269  ;  Puffer,  10  Fed.  R.  606 ;  Lamed  v.  Griffin, 
Juneau  Bank  v.  McSpedan,  5  Biss.  64 ;  12  Fed.  R.  590. 

Matthews  v.  Tufts,  87  N.  Y.  568  ;  Brooks  13  Lyell  v.  Goodwin,  4  McLean,  29. 

v.  Farwell,  2  McCrary,  220 ;  s.  c.  4  Fed.  14  Nichols  v.  Horton,  14  Fed.  R.  327. 

R.  167 ;  Bridges  v.  Sheldon,  7  Fed.  R.  17 ;  15  Ex  parte  Schulenburg,  25  Fed.  R. 

Matthews   v.   Puffer,    10    Fed.   R.  606;  211. 

Larned  v.  Griffin,  12  Fed.  R.  590.  16  Ex  parte  Hurst,  1  Wash.  C.  C.  186. 

8  Matthews  v.  Tufts,  87  N.  Y.  568.  See  Ex  parte  Schulenburg,  25  Fed.  R.  211, 

9  United  States  v.  Bridgman,  8  Am.  212. 

Law  Record,  541 ;  Newton  v.  Askew,  6  17  Bridges  v.  Sheldon,  7  Fed.  R.  17,  42 ; 

Hare,  319 ;  Matthews  v.  Tufts,  87  N.  Y.  Ex  parte  Schulenburg,  25  Fed.  R.  211, 

568.  213. 

10  United  States  v.  Bridgman,  8  Am.  18  Union  Sugar  Refinery  v.  Mathiesson, 
Law  Record,  541.  But  see  Jenkins  v.  2  Cliff.  304 ;  Steiger  v.  Bonn,  4  Fed.  R. 
Smith,  57  How.  Pr.  (N.  Y.)  171.  17 ;  Blair  v.  Turtle,  5  Fed.  R.  394 ;  s.  c. 

11  Juneau  Bank  v.  McSpedan,  5  Biss.  23  Alb.  L.  J.  435 ;  Baker  v.  Wales,  14 
64:  Matthews  v.  Tufts,  87  N.  Y.  568.  Abb.  Pr.  n.  s.  (N.  Y.)  331. 

12  Parker  v.  Hotchkiss,  1  Wall.  Jr.  269 ;  19  Steiger  v.  Bonn,  4  Fed.  R.  17. 
United  States  v.  Bridgman,  8  Am.  Law 


§  100.]  WHAT   CONSTITUTES   AN   APPEAKANCE.  161 


CHAPTER  VI. 

APPEARANCE. 

§  99.  Definition  of  an  Appearance.  —  An  appearance  is  the  pro- 
cess by  which  a  defendant  submits  himself  to  the  jurisdiction  of 
the  court.  An  appearance  is  either  general  or  special.  By  a 
general  appearance  a  defendant  appears  for  all  purposes  in  the 
suit.  By  a  special  appearance  he  appears  solely  for  the  purpose 
of  objecting  to  the  jurisdiction  on  account  of  a  defect,  omission, 
or  irregularity  in  the  service  of  the  subpoena  upon  him,  or  per- 
haps for  some  other  reason.1  An  appearance  gratis  is  an  appear- 
ance by  a  defendant  who  has  not  been  served  with  process.2 

§  100.  What  constitutes  an  Appearance.  —  The  proper  method 
of  entering  an  appearance  is  to  deliver  to  the  clerk  a  praecipe, 
that  is,  a  written  direction,  ordering  him  to  enter  the  appearance 
of  the  defendant  who  subscribes  it.1  The  taking,  however,  of 
any  proceeding2  other  than  a  special  appearance  and  a  motion  or 
plea  thereon  founded,  is  equivalent  to  a  general  appearance.3  It 
has  not  yet  been  authoritatively  decided  whether  or  not  the 
filing  of  a  petition  for  a  removal  from  a  State  to  a  Federal  court 
is  equivalent  to  a  general  appearance.4  The  indorsement  and 
signature  by  a  defendant  upon  a  subpoena  of  the  words,  "  I 
hereby  accept  service  of  the  within  subpoena,  to  have  the  same 
effect  as  if  duly  served  on  me  by  a  proper  officer,  and  do  hereby 

§  09.  1  National  Furnace  Co.  v.  Moline  410;  Livingston  v.  Gibbons,  4  J.  Ch. 
Malleable  Iron  Works,  18  Fed.  R.  803;  (N.Y.)  94;  Blackburn  v.  Selraa,  M.  &  M. 
Elliott  v.  Lawbead,  43  Ohio  St.  171 ;  Dorr  R.  R.  Co.,  2  Flippin,  525. 
v.  Gibboney,  3  Hughes,  382  ;  U.  S.  v.  4  It  was  held  that  it  was  not,  in  Par- 
American  Bell  Telephone  Co.,  29  Fed.  rott  v.  Alabama  Gold  Life  Ins.  Co  ,  5  Fed. 
K.  n.  R.  391;  Atchison  v.  Morris,  11  Fed.  R. 

2  Daniell's  Ch.  Pr.  (2d  Am.  ed)  590-  582;    Small  v.  Montgomery,  17  Fed.  R. 

595.  865;  Miner  v.  Markham,  28  Fed.  R.  387  ; 

§100.  *  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  Estea  v.   Knickerbocker    Life    Ins.   Co., 

590,  591.  N.  Y.  C.  P.  Trial  Term,  Beach,  J.,  Daily 

2  Jones  v.   Andrews,   10  Wall.   327;  Register,  Nov.  17, 1882.     See  also  Freid- 

Thomburgh  j;.  Savage  Mining  Co.,  1  Pad-  hinder  v.  Pollock,  5  Coldw.  (Tcnn.)  490. 

fie  Law  Mag.  267  ;  Livingston  v.  Gibbons,  But  see  the  conflicting  cases  of  Sayles  u. 

4  J.  Ch.  (N.  Y.)  94,  99.  N.  W.  Ins.  Co.,  2  Curt.  212  ;  Bushnell  v. 

1  New  Jersey  v.  New  York,  6  Pet.  323  ;  Kennedy,  9  Wall.  387,  393;  Sweeney  v. 

Van  Antwerp  v.  Ilulburd,  7  Blatchf.  426,  Coffin,  1  Dill.  73,  70. 

11 


162  APPEARANCE.  [CHAP.  VI. 

acknowledge  the  receipt  of  a  copy  thereof,"  is  not  equivalent  to 
an  appearance.5  A  special  appearance,  it  would  seem,  is  only 
properly  made  by  special  leave  of  the  court  obtained  by  an  ex 
parte  motion.6  And  it  is  the  safer  practice  to  accompany  it  with 
an  undertaking  by  the  defendant  to  abide  by  the  further  orders 
of  the  court.7  An  appearance  gratis  can  only  be  made  by  a 
defendant  named  in  the  introduction  or  prayer  for  process  in  the 
bill  unless  by  consent  of  all  the  parties  to  the  suit.8 

§  101.  Effect  of  an  Appearance.  —  A  general  appearance  waives 
all  objections  to  the  form  or  manner  of  service  of  the  subpoena,1 
including  the  objection  that  the  defendant  was  not  "  found  "  and 
did  not  reside  within  the  district.2  A  general  appearance  also 
waives  au  omission  of  the  name  of  the  defendant  from  the  prayer 
of  process,  provided  he  was  named  in  another  part  of  the  bill.3 
A  general  appearance  does  not,  however,  waive  an  objection  to 
the  jurisdiction  of  the  court  upon  the  ground  of  a  lack  of  the 
requisite  difference  of  citizenship.4  After  a  special  appearance 
for  the  purpose  of  objecting  to  the  jurisdiction  has  been  made, 
and  the  objection  overruled,  the  right  to  insist  upon  this  objec- 
tion on  an  appeal  is  not  lost  by  a  subsequent  appearance  and 
defence  to  the  suit  upon  the  merits.5  The  court  has  power  to 
allow  a  general  appearance  to  be  changed  by  amendment  to  a 
special  appearance ; 6  or  to  be  withdrawn.7 

§  102.  "When  an  Appearance  must  be  made.  —  "  The  appearance- 
day  of  the  defendant  shall  be  the  rule-day  to  which  the  subpoena 

5  Butterworth  v.  Hill,  114  U.  S.  128,  2  Sayles  v.  Northwestern  Ins.  Co.,  2 
132,  133.  Curt.  212 ;  Shields  v.  Thomas,  18  How. 

6  Thayer  v.  "Wales,  5  Fisher's  Pat.  253,  259 ;  Toland  v.  Sprague,  12  Pet.  300, 
Cas.  448 ;  Romaine  v.  Union  Ins.  Co.,  28  331 ;  Butterworth  v.  Hill,  114  U.  S.  128, 
Fed.  R.  625.  But  see  Dorr  v.  Gibhoney,  132,  133;  Provident  Savings  Life  Assur- 
3  Hughes,  382;  National  Furnace  Co.  v.  ance  Society  v.  Ford,  114  U.  S.  635,  639. 
Moline  Malleable  Iron  Works,  18  Fed.  R.  But  see  Noyes  v.  Canada,  30  Fed.  R. 
863.  665. 

7  Romaine  v.  Union  Ins.  Co.,  28  Fed.  3  Segee  v.  Thomas,  3  Blatchf.  11 ; 
R.  625.  Buerk  v.  Imhaeuser,  8  Fed.  R.  457. 

8  Attorney-General  v.  Pearson,  7  Si-  4  Romaine  v.  Union  Ins.  Co.,  28  Fed. 
mons,  290,  302;  Kentucky  Silver  Mining  R.  625 ;  U.  S.  R.  S.  1  Supp.  pp.  173,  175  ; 
Co.  v.  Day,  2  Saw.  468,  473.  18  Sts.  at  L.  470 ;  Act  of  March  3,  1875, 

§  101.  l  Segee  v.  Thomas,  3  Blatchf.  11 ;  §  5. 
Goodyear  v.  Chaffee,  3  Blatchf.  268  ;  Hale  5  Harkness  v.  Hyde,  98  U.  S.  476. 

v.  Continental  Life  Ins.  Co.,  12  Fed.  R.  6  United  States  v.  Yates,  6  How.  605 ; 

359;   Provident  Savings  Life  Assurance  Hohorst  v.  Hamburg  Amer.  Packet  Co., 

Society  v.  Ford,  114  U.  S.  635,  639 ;  Rob-  38  Fed.  R.  273. 

inson  v.  National  Stockyard  Co.,  12  Fed.         7  Rhode  Island  v.  Massachusetts,  13 

R.  361 ;  s.  c.  20  Blatchf.  513;  Buerk  v.  Pet.  23. 
Imhaeuser,  8  Fed.  R.  457. 


§  102.]  WHEN   AN   APPEAKANCE   MUST   BE   MADE.  163 

is  made  returnable,  provided  he  has  been  served  with  the  process 
twenty  days  before  that  day  ;  otherwise,  his  appearance-day  shall 
be  the  next  rule-day  succeeding  the  rule-day  when  the  process 
is  returnable."  1  The  first  Monday  of  each  month  is  a  rule-day.2 
A  defendant  may  appear  at  any  time  after  the  filing  of  the  bill, 
and  before  the  time  named  in  the  rule  has  expired.3  The  court 
has  power  to  enlarge  the  time  for  an  appearance,  if  special 
cause  therefor  be  shown.4 

§  102.  i  Rule  17.  *  Poulmey  v.  City  of  La  Fayette,  12 

2  Rule  2.  Pet.  472. 

3  Heyman  v.  Uhlman,  U  Fed.  R?  686. 


164  TAKING   BILLS   PRO   CONFESSO.  [CHAP.  VII. 


CHAPTER  VII. 

TAKING   BILLS   PRO   CONFESSO. 

§  103.  When  a  Bill  may  be  taken  pro  confesso.  —  If  a  defendant 
fails  to  enter  his  appearance  on  or  before  the  day  at  which  the 
writ  is  returnable,  the  bill  may  be  taken  as  confessed,  pro 
confesso.1  If  a  defendant  fails  to  file  a  plea,  answer,  or  demurrer, 
to  the  bill  on  or  before  the  rule-day  next  succeeding  that  of 
entering  his  appearance,  the  plaintiff  may  have  the  bill  taken  pro 
confesso,  unless  the  defendant  has  had  his  time  enlarged  for 
cause  shown  by  a  judge  of  the  court.2  A  bill  may  be  also  taken 
as  confessed  upon  the  failure  of  a  defendant  to  answer  within  the 
time  allowed  him  after  a  demurrer  or  plea  has  been  overruled.3 
In  a  proper  case,  part  of  a  bill  may  be  taken  as  confessed.4 
Thus,  where  the  defendant  had  repeatedly  failed  to  answer  an 
interrogatory,  the  parts  of  the  bill  which  the  same  affected  were 
ordered  taken  as  confessed.5  It  is  uncertain  whether,  when  the 
defendant  after  answering  the  original  bill  fails  to  file  a  further 
answer  to  material  amendments  thereof,  the  complainant  is 
entitled  to  have  the  whole  bill  taken  as  confessed,  or  only  the 
part  unanswered.6  It  is  doubtful  whether  a  bill  can  be  taken  as 
confessed  against  an  infant  or  other  person  under  a  disability.7 
Certainly,  it  cannot  before  a  guardian  ad  litem  has  been  ap- 
pointed.8 Should  the  guardian  refuse  to  answer,  the  safer 
course  for  the  complainant  would  be  to  obtain  a  reference  to  a 
master  and  prove  the  allegations  of  the  bill  before  him.9 

§  103.   i  Rule  12.  (N.  Y.),  589,  593,  594;  Hawkins  v.  Crook, 

2  Rule  18.  2  P.  Wms.  559. 

3  Suydam  v.  Beals,  4  McLean,  12.  7  Compare  the  positive  language   of 

4  Suydam  v.  Beals,  4  McLean,  12,  15 ;  Equity  Rule  18,  with  Mills  v.  Dennis,  3 
Hale  v.  Continental  Life  Ins.  Co.,  20  Fed.  J.  Ch.  (N.  Y.)  367 ;  O'Hara  v.  MacCon- 
R.  344.  nell,  93  U.  S.  151. 

6  Hale  v.  Continental  Life  Ins.  Co.,  8  O'Hara  v.  MacConnell,  93  U.  S.  151. 
20  Fed.  R.  344.  9  Mills   v.   Dennis,  3  J.  Ch.   (N.  Y.) 

6  Suydam  v.  Beals,  4  McLean,  12,  15;  367. 
Trust  &  Fire  Ins.  Co.  v.  Jenkins,  8  Paige 


§  104.]  PRACTICE    IN    TAKING   A   BILL    PRO    CONFESSO.  165 

§  104.  Practice  in  Taking  a  Bill  pro  confesso.  —  The  practice 
when  a  bill  is  taken  pro  confesso  can  be  most  satisfactorily  de- 
scribed in  the  following  quotations  from  the  Equity  Rules,  and 
from  a  recent  opinion  by  Mr.  Justice  Bradley.1  When  a  defend- 
ant fails  to  plead  in  time,  "  the  plaintiff  may,  at  his  election,  enter 
an  order  (as  of  course)  in  the  order-book,  that  the  bill  be  taken 
pro  confesso;  and  thereupon  the  cause  shall  be  proceeded  in 
ex  parte,  and  the  matter  of  the  bill  may  be  decreed  by  the  court 
at  any  time  after  the  expiration  of  thirty  days  from  and  after  the 
entry  of  said  order,  if  the  same  can  be  done  without  an  answer, 
and  is  proper  to  be  decreed  ;  or  the  plaintiff,  if  he  requires  any 
discovery  or  answer  to  enable  him  to  obtain  a  proper  decree, 
shall  be  entitled  to  process  of  attachment  against  the  defendant 
to  compel  an  answer,  and  the  defendant  shall  not,  when  arrested 
upon  such  process,  be  discharged  therefrom,  unless  upon  riling 
his  answer,  or  otherwise  complying  with  such  order  as  the  court 
or  judge  thereof  may  direct,  as  to  pleading  to  or  fully  answering 
the  bill,  within  a  period  to  be  fixed  by  the  court  or  judge,  and 
undertaking  to  speed  the  cause."2  No  service  need  be  made 
of  the  order  taking  the  bill  pro  confesso.8  "  When  the  bill  is 
taken  pro  confesso  the  court  may  proceed  to  a  decree  at  any 
time  after  the  expiration  of  thirty  days  from  and  after  the  en- 
try of  the  order  to  take  the  bill  pro  confesso;  and  such  decree 
rendered  shall  be  deemed  absolute,  unless  the  court  shall,  at 
the  same  term,  set  aside  the  same,  or  enlarge  the  time  for  filing 
the  answer,  upon  cause  shown,  upon  motion  and  affidavit  of 
the  defendant ;  and  no  such  motion  shall  be  granted  unless 
upon  payment  of  the  costs  of  the  plaintiff  in  the  suit  up  to 
that  time,  or  such  part  thereof  as  the  court  shall  deem  reason- 
able, and  unless  the  defendant  shall  undertake  to  file  his  an- 
swer within  such  time  as  the  court  shall  direct,  and  submit 
to  such  other  terms  as  the  court  shall  direct,  for  the  purpose  of 
speeding  the  cause."4  After  the  term,  a  decree  taking  a  bill  as 
confessed  cannot  be  set  aside  on  motion.5  "  A  confession  of  facts 
properly  pleaded  dispenses  with  proof  of  these  facts,  and  is  as 
effective  for  the  purposes  of  the  suit  as  if  the  facts  were  proved  ; 

§  101.   l  Thomson  v.  Wooster,  114  U.  3  Bank  of  the  United  States  v.  White, 

S.  104.  8  Pet,  262. 

2  Rule  18.     See  Bead  v.  Consequa,  4  4  Rule  19.     See  Maynard  v.  Pomfret, 

Wash.  174;    O'Hara  v.  MacConnell,  93  3  Atk.  4(58;  Heyni  v.  Heyn,  Jacob,  49. 
U.  S.  150,  152.  a  Allen  v.  Wilson,  21  Fed.  R.  881. 


166  TAKING   BILLS    PRO   CONFESSO.  [CHAP.  VII. 

and  a  decree  pro  confesso  regards  the  statements  of  the  bill  as 
confessed.  By  the  early  practice  of  the  civil  law,  failure  to  ap- 
pear at  the  day  to  which  the  cause  was  adjourned  was  deemed  a 
confession  of  the  action,  but  in  later  times  this  rule  was  changed, 
so  that  the  plaintiff,  notwithstanding  the  contumacy  of  the  de- 
fendant, only  obtained  judgment  in  accordance  with  the  truth  of 
the  case  as  established  by  an  ex  parte  examination.  Keller,  Pro- 
ceed. Rom.  §  69.  The  original  practice  of  the  English  Court  of 
Chancery  was  in  accordance  with  the  later  Roman  law.  Hawkins 
v.  Crook,  2  P.  Wms.  556.  But  for  at  least  two  centuries  past 
bills  have  been  taken  pro  confesso  for  contumacy.  Hid.  Chief 
Baron  Gilbert  says  :  '  Where  a  man  appears  by  his  clerk  in  court, 
and  after  lies  in  prison,  and  is  brought  up  three  times  in  court  by 
habeas  corpus,  and  has  the  bill  read  to  him,  and  refuses  to  an- 
swer, such  public  refusal  in  court  does  amount  to  a  confession  of 
the  whole  bill.  Secondly,  when  a  person  appears  and  departs 
without  answering,  and  the  whole  process  of  the  court  has  been 
awarded  against  him  after  his  appearance  and  departure,  to  the 
sequestration ;  there  also  the  bill  is  taken  pro  confesso,  because 
it  is  presumed  to  be  true  when  he  has  appeared  and  departs  in 
despite  of  the  court,  and  withstands  all  its  process  without  an- 
swering.' Forum  Romanum,  36.  Lord  Hardwicke  likened  a 
decree  pro  confesso  to  a  judgment  by  nil  dicit  at  common  law, 
and  to  judgment  for  plaintiff  on  demurrer  to  the  defendant's 
plea.  Davis  v.  Davis,  2  Atk.  21.  It  was  said  in  Hawkins  v.  Crook, 
qua  supra,  and  quoted  in  2  Eq.  Ca.  Ab.  179,  that  '  the  method  in 
equity  of  taking  a  bill  pro  confesso  is  consonant  to  the  rule  and 
practice  of  the  courts  at  law,  where,  if  the  defendant  makes  de- 
fault by  nil  dicit,  judgment  is  immediately  given  in  debt,  or  in 
all  cases  where  the  thing  demanded  is  certain ;  but  where  the 
matter  sued  for  consists  in  damages,  a  judgment  interlocutory  is 
given ;  after  which  a  writ  of  inquiry  goes  to  ascertain  the  dam- 
ages, and  then  the  judgment  follows.'  The  strict  analogy  of 
this  proceeding  in  actions  of  law  to  a  general  decree  pro  confesso 
in  equity  in  favor  of  the  complainant,  with  a  reference  to  a  mas- 
ter to  take  a  necessary  account,  or  to  assess  unliquidated  dam- 
ages, is  obvious  and  striking.  A  carefully  prepared  history  of 
the  practice  and  effect  of  taking  bills  pro  confesso  is  given  in 
Williams  v.  Corwin,  Hopkins  Ch.  471,  by  Hoffman,  Master,  in  a 
report  made  to  Chancellor  Sanford,  of  New  York,  in  which  the 


§   104.]  PKACTICE   IN   TAKING    A    BILL   PKO   CONFESSO.  167 

conclusion  come  to  (and  adopted  by  the  Chancellor),  as  to  the 
effect  of  taking  a  bill  pro  confesso,  was  that  '  when  the  allegations 
of  a  bill  are  distinct  and  positive,  and  the  bill  is  taken  as  con- 
fessed, such  allegations  are  taken  as  true  without  proofs,'  and  a 
decree  will  be  made  accordingly  ;  but  '  where  the  allegations  of 
a  bill  are  indefinite,  or  the  demand  of  the  complainant  is  in  its 
nature  uncertain,  the  certainty  requisite  to  a  proper  decree  must 
be  afforded  by  proofs.  The  bill,  when  confessed  by  the  default 
of  the  defendant,  is  taken  to  be  true  in  all  matters  alleged  with 
sufficient  certainty ;  but  in  respect  to  matters  not  alleged  with 
due  certainty,  or  subjects  which  from  their  nature  and  the  course 
of  the  court  require  an  examination  of  details,  the  obligation  to 
furnish  proofs  rests  on  the  complainant.' "  6  When  the  bill  re- 
lates to  an  unsettled  account,  a  reference  to  a  master  is  always 
necessary.7  "  We  may  properly  say,  therefore,  that  to  take  a  bill 
pro  confesso  is  to  order  it  to  stand  as  if  its  statements  were  con- 
fessed to  be  true  ;  and  that  a  decree  pro  confesso  is  a  decree 
based  on  such  statements,  assumed  to  be  true,  1  Smith's  Ch. 
Pract.  153,  and  such  a  decree  is  as  binding  and  conclusive  as 
any  decree  rendered  in  the  most  solemn  manner.  It  cannot  be 
impeached  collaterally,  but  only  upon  a  bill  of  review,  or  [a  bill] 
to  set  it  aside  for  fraud." 8  "A  decree  pro  confesso  is  not  a 
decree  as  of  course  according  to  the  prayer  of  the  bill,  nor  merely 
such  as  the  complainant  chooses  to  take  it;"9  but  it  should  be 
made  "  by  the  court  according  to  what  is  proper  to  be  decreed 
upon  the  statements  of  the  bill  assumed  to  be  true  ;  "  10  "  the  mat- 
ter of  the  bill  ought  at  least  to  be  opened  and  explained  to  the 
court  when  the  decree  is  applied  for,  so  that  the  court  may  see 
that  the  decree  is  a  proper  one.  The  binding  character  of  the 
decree,  as  declared  in  Rule  19,  renders  it  proper  that  this  degree 
of  precaution  should  be  taken."  u  "  We  have  deemed  it  unne- 
cessary to  make  any  remarks  as  to  the  status  of  a  defendant 
before  a  master  on  a  reference  under  a  decree  pro  confesso.  Both 
parties  in  this  case  seem  to  have  taken  it  for  granted  that  the 

6  Mr.  Justice  Bradley  in  Thomson  v.  2°  Mr.  Justice  Bradley  in  Thomson  v. 

Wooster,  114  U.  S.  104,  110,  111.  Wooster,  114  U.  S.  104,  113;  Andrews  v. 

"  Pendleton  v.  Evans,  4  Wash.  391.  Cole,  20  Fed.  R.  410;  Hose  v.  Woodruff, 

8  Mr.  Justice  Bradley  in  Thomson  v.  4  J.  Ch.  (N.  Y.)  547,  548. 

Wooster,  114  U.  S.  104,  112.  "  Mr.  Justice  Bradley  in  Thomson  v. 

9  Mr.  Justice  Bradley  in  Thomson  v.     Wooster,  114  U.  S.  104,  113,  114. 
Wooster,  114  U.  S.  104,  111,  112. 


168  TAKING   BILLS    PRO   CONFESSO.  [CHAP.  VII. 

rights  of  the  defendants  were  the  same  as  if  the  decree  had  been 
made  upon  answer  and  proofs.     In  the  English  practice,  it  is 
true,  as  it  existed  at  the  time   of  the  adoption  of  our  present 
Rules  (in  1842),  the  defendant,  after  a  decree  pro  confesso  and  a 
reference  for  an  account,  was  entitled  to  appear  before  the  mas- 
ter, and  to  have  notice  of  and  take  part  in  the  proceedings,  pro- 
vided he  obtained  an  order  of  the  court  for  that  purpose,  which 
would  be  granted  on  terms.     2  Daniell  Ch.  Pr.   804,   1st  ed.; 
ditto,  1358,  2d  ed.,  by  Perkins  ;  Heyn  v.  Heyn,  Jacob,  40.     The 
former  practice  in  the  Court  of  Chancery  of  New  York  was  sub- 
stantially the  same.     1  Hoffman  Ch.  Pr.  520  ;  1  Barb.  Ch.  Pr. 
479.     In  New  Jersey,  except  in  plain  cases  of  decree  for  the 
foreclosure  of  a  mortgage  (where  no  reference  is  required),  the 
matter  is  left  to  the  discretion  of  the  court.     Sometimes  notice 
is  ordered  to  be  given  to  the  defendant  to  appear  before  the 
master,  and  sometimes  not ;  as  it  is  also  in  the  Chancellor's  dis- 
cretion to  order  a  bill  to  be  taken  pro  confesso  for  a  default,  or  to 
order  the  complainant  to  take  proofs  to  sustain  the  allegations  of 
the   bill.     Nixon   Dig.,   Art.    Chancery,  §  21  ;    Gen.  Orders  in 
Chancery,  XIV.  8-7  ,  Brundage  v.  Goodfellow,  4  Halst.  Ch.  513. 
As  we  have  seen,  by  our  18th  Rule  in  Equity,  it  is  provided  that 
if  a  defendant  make  default  in  not  filing  his  plea,  demurrer,  or 
answer  in  proper  time,  the  plaintiff  may,  as  one  alternative,  enter 
an  order,  as  of  course,  that  the  bill  be  taken  pro  confesso,  '  and 
thereupon  the  same  shall  be  proceeded  ex  parte?     The  old  Rules, 
adopted  in  1822,  did  not  contain  this  ex  parte  clause;  they  sim- 
ply declared  that  if  the  defendant  failed  to  appear  and  file  his 
answer  within  three  months  after  appearance  day,  the  plaintiff 
might  take  the  bill  for  confessed,  and  that  the  matter  thereof 
should  be  decreed  accordingly;  the  decree  to  be  absolute  unless 
cause  should  be  shown  at  the  next  term.     See  Equity  Rules  VI. 
and  X.  of  1822,  7  Wheat.  VII.,  and  Pendleton  v.  Evans,  4  Wash. 
C.  C.  R.  336  ;  OHara  v.  MacConnell,  93  U.  S.  150.     Under  these 
rules  the  English  practice  was  left  to   govern  the  subsequent 
course  of  proceeding,  by  which,  as  we  have  seen,  the  defendant 
might  have  an  order  to  permit  him  to  appear  before  the  master, 
and  be  entitled  to  notice.     Whether  under  the  present  rule  a  dif- 
ferent practice  was  intended  to  be  introduced  is  a  question  which 
it  is  not  necessary  to  decide  in  this  case."12     It  has,  however, 
12  Mr.  Justice  Bradley  in  Thomson  v.  Wooster,  114  U.  S.  104,  119,  120. 


§  104]  PEACTICE   IN   TAKING   A    BILL    PRO    CONFESSO.  169 

been  held  in  the  second  circuit,  that  "  Equity  Rule  18  provides 
that,  after  the  order  pro  confesso,  the  cause  shall  proceed  ex 
parte  ;  but  this  does  not  mean  without  notice  to  a  party  who  has 
appeared  in  the  cause.  Such  party  is  entitled  to  notice,  and  has 
the  right  to  be  heard  as  to  the  form  of  the  decree,  aud  upon  such 
other  questions  as  can  be  presented  upon  the  complainant's 
pleadings  and  proofs.  This  is  the  uniform  construction  given 
to  the  Rule  throughout  this  circuit." 13  Where  a  bill  for 
the  infringement  of  a  patent  alleges  infringement  of  "the  in- 
vention "  of  the  plaintiffs,  and  is  taken  as  confessed,  it  seems 
that  it  cannot  be  claimed  in  subsequent  proceedings  in  the  same 
suit  that  the  patent  is  void  upon  its  face.14  When  there  are 
more  than  one  defendant  who  are  charged  with  a  joint  liability, 
after  the  bill  has  been  taken  as  confessed  against  one,  no  final 
decree  can  be  made  against  him,  unless  and  until  a  decree  is 
entered  against  those  who  appearand  defend  the  suit.15  It  seems 
that  a  decree  taking  a  bill  as  confessed  is  of  no  effect  unless  fol- 
lowed by,  or  included  in  a  final  decree.16  The  entry  of  a  final 
decree  by  default  upon  notice  to  the  defendants,  without  the  pre- 
vious entry  of  a  formal  order  taking  the  bill  as  confessed,  is  an 
irregularity  for  which  the  decree  cannot  be  set  aside  upon  mo- 
tion after  the  term  at  which  it  is  rendered.17  But  a  decree 
entered  pro  confesso  will  be  set  aside  upon  motion  at  a  subse- 
quent term,  when  entered  before  the  time  allowed  the  defendant 
by  the  rules  to  plead  to  the  bill.18  An  appeal  can  be  taken  from 
the  final  decree  after  a  bill  has  been  taken  as  confessed.19  Upon 
such  an  appeal  the  decree  may  be  reversed  for  a  defect  in  the 
service  of  the  subpoena,20  for  failure  to  appoint  a  guardian  ad  litem 
when  required,21  and  it  seems  for  a  want  of  indispensable  par- 
ties.22 Otherwise,  the  only  question  for  the  consideration  of  the 
court  is  whether  the  allegations  in  the  bill  are  sufficient  to 
support  the  decree.23 

13  Judge  Wallace  in  Bennett  v.  Hoef-        18  Fellows  v.  Hall,  3  McLean,  281. 
ner,  17  Blatchf.  341,  342.  "  Frow  v.  De  La  Vega,  15  Wall.  552; 

14  Dobson  v.  Hartford  Carpet  Co.,  114     Butterworth  v.  Hill,  114  U.  S.  128. 

U.  S.  439,  446,  447.  2)  o'Hara  v.  MacConnell,  93  U.  S.  150; 

15  Frow  v.  De  La  Vega,  15  Wall.  552.       Butterworth  v.  Hill,  114  U.  S.  128. 

1B  Lockhart  v.   Horn,   3   Woods,  542,        -1  O'Hara  v.  MacConnell,  93  U.  S.  150. 

548.  22  o'Hara  t\  MacConnell,  93  U.  S.  150 

17  Linder  v.  Lewis,  1  Fed.  R.  378.  'a  Masterson  v.  Howard,  18  Wall.  99. 


170  DEMURRERS.  [CHAP.  VIII. 


CHAPTER  VIII. 

DEMURRERS. 

§  105.  Definition  and  General  Characteristics  of  a  Demurrer.  — 
A  demurrer  is  a  pleading  which  admits  the  truth  of  a  bill,  but 
claims  that  the  defendant  should  be  excused  from  answering 
thereto  and  the  complainant  be  denied  relief  on  account  of  some 
irregularity  or  insufficiency  existing  in  it.  As  the  name  denotes, 
demurrers  were  borrowed  from  the  common  law.1  They  are  so 
termed  because  the  defendant  demoratur,  or  will  go  no  farther.2 
A  speaking  demurrer  is  one  that  introduces  a  new  fact  or  aver- 
ment which  is  necessary  to  support  the  demurrer,  and  does  not 
appear  distinctly  on  the  face  of  the  bill.3  Such  a  demurrer  is 
always  bad,  and  will  be  overruled.4  But  in  order  to  constitute  a 
speaking  demurrer,  the  fact  or  averment  introduced  must  be 
one  which  is  necessary  to  support  the  demurrer  and  is  not  found 
in  the  bill ;  the  introduction  of  immaterial  facts,  or  averments, 
or  of  arguments,  is  improper,  but  constitutes  mere  surplusage 
and  will  not  vitiate  the  demurrer.5  A  demurrer  is  also  bad  if  it 
relies  for  its  support  upon  averments  in  an  answer.6  A  demurrer 
must  not  be  addressed  to  a  point  within  the  discretion  of  the 
court;  if  so,  it  will  be  overruled.7  It  has  been  held,  that  when 
the  bill  shows  that  a  defendant  is  not  an  inhabitant  of  the 
district  that  defect  may  be  raised  by  demurrer.8  A  demurrer 
cannot  be  filed  to  an  answer.9 

§  106.    Admissions    by  a  Demurrer.  —  A    demurrer  admits    the 

§  105.  !  Langdell's  Eq.  PI.  §§  53,  92.  5  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  657 ; 

2  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  543;  Cawthorn  v.  Chalie,  2  Sim.  &  S.  127; 
3  Bl.  Com.  314.  Davies  v.  Williams,  1  Simons,  5. 

3  Edsell  v.  Buchanan,  4  Brown  Ch.  C.  6  Chicago,   St.   Louis  &  New  Orleans 
254 ;  Davies  v.  Williams,  1  Simons,  5,  7  ;  R.  R.  Co.  v.  Macomb,  2  Fed.  R.  18. 
Lamb  v.  Starr,  Deady,  350  ;  Daniell's  Ch.  7  Verplank  v.  Caines,  1  J.  Ch.  (N.  Y.) 
Pr.  (2d  Am.  ed.)656,  note  2;  Story's  Eq.  57. 

pi.  §  448.  8  Reinstadler  v.  Rehls,    33    Fed.   R. 

*  Edsell  ».  Buchanan,  4  Brown  Ch.  C.  308 ;  Miller  Magee  Co.  v.  Carpenter,  34 

254  ;  Story's  Eq.  PI.  §  448;  Daniell's  Ch.  Fed.  R.  433.     But  see  §  101. 
Pr.  (2d  Am.  ed.)  656,  note  2.  9  Crouch  v.  Kerr,  38  Fed.  R.  549. 


§  106.]  ADMISSIONS    BY   A    DEMURRER.  171 

truth  of  the  allegations  of  fact  in  the  bill.1  "  As  a  matter  of 
construction  of  an  ambiguous  clause,  the  court  is  bound  to  adopt 
that  interpretation  which  is  least  favorable  to  the  plaintiff;  but 
the  defendant  is  not  entitled  to  press  this  principle  so  far  as  to 
draw  any  inferences  of  fact  he  pleases  which  may  happen  to  be 
not  inconsistent  with  the  averments  of  the  bill."  2  It  has  been 
said  that  "  reasonable  presumptions  are  admitted  by  demurrer  as 
well  as  the  matters  expressly  alleged."3  The  court  will  not  infer 
from  an  allegation,  that  a  fraud  was  committed  at  a  time  beyond 
the  limit  of  the  Statute  of  Limitations,  that  the  fraud  was  then 
discovered.4  "  A  demurrer  only  admits  facts  well  pleaded  ;  it 
does  not  admit  matters  of  inference  and  argument,  however 
clearly  stated ;  it  does  not  admit,  for  example,  the  accuracy 
of  an  alleged  construction  of  an  instrument,  when  the  instru- 
ment itself  is  set  forth  in  the  bill,  or  a  copy  is  annexed, 
against  a  construction  required  by  its  terms,  nor  the  correct- 
ness of  the  ascription  of  a  purpose  to  the  parties  when  not 
justified  by  the  language  used.  The  several  averments  of  the 
plaintiff  in  the  bill  as  to  his  understanding  of  his  rights,  and  of 
the  liabilities  and  duties  of  others  under  the  contract,  can,  there- 
fore, exert  no  influence  upon  the  mind  of  the  court  in  the  dis- 
position of  the  demurrer."5  "  Though  the  authorities  are  by  no 
means  unanimous,  the  weight  of  opinion  is  in  favor  of  the  prop- 
osition that  where  profert  is  made  of  a  recorded  paper  it  is  for 
all  purposes  presented  to  the  court  as  a  part  of  the  pleading,  and 
an  objection  thereto  may  be  taken  by  demurrer."6  A  demurrer 
does  not  admit  conclusions  of  law ;  and  in  the  construction  of 
the  bill  upon  the  argument  they  may  be  disregarded.7     Such,  for 

§  106.   !  Bailey   v.    Birkenhead,    Lan-  5  Mr    Justice  Field  in  Dillon  v.  Bar- 

cashire   &    Cheshire  Junction   Ry.   Co.,  nard,  21  Wall.  430,  437,  438.     See  also 

12  Beav.  433,  443 ;  Pacific  R.  R.  of  Mis-  s.  c.    1    Holmes,   386;   United  States  v. 

souri  v.  Missouri    Pacific    Ry.  Co,    111  Ames,  99  U.  S.  35,  45. 

U.  S.  505,  522;  Boyer  v.  Boyer,  113  U.  S.  6  Coxe,  J.,  in  Bogart  v.  Hinds,  25  Fed. 

689,  701.  R.  484,   citing   Knott  v.  Burleson,   2  G. 

2  Sir  Page  Wood,  V.  C,  in  Simpson  v.  Greene  (Iowa),  600;  Wilder  v.  M'Cor- 
Fogo,  1  J.  &  H.  18,  23 ;  s.  c.  6  Jurist  n.  s.  mick,  2  Blatchf . 81, 35;  Grahame  v.  Cooke, 
949.  See  Union  Pac.  Ry.  Co.  v.  Mercer,  1  Cranch  C.  C.  116;  Douglass  v.  Rath- 
28  Fed.  R.  9.  bone,  5  Hill  (N.  Y.),  143  ;  Rantin  v.  Rob- 

3  Mr.  Justice  Clifford  in  Amory  v.  Law-  ertson,  2  Strobh.  Law  (S.  C),  366;  1 
rence,  3  Clifford,  523,  536.  Chitty's  PI.  415,  416. 

4  Sheldon  v.  Keokuk  No.  Line  Packet  7  Dillon  v.  Barnard,  21  Wall.  430;  Wil- 

Co.,  8    Fed.   R.    769,   777;    Johnson   v.  son   v.   Gaines,   103   U.  S.  417;   Packet 

Powers,  13  Fed.  R.  315;  Jones  v.  Slaw-  Company  v.  Catlettsbnrg,  105  U.  S.  559 ; 

son.  83  Fed.  R.  632,  G36.  Transportation  Company  v.  Parkersburgj 


172  DEMURRERS.  [CHAP.  VIII. 

example,  are  the  allegations  that  a  tax  is  "  unreasonable  and 
excessive,"  without  the  statement  of  any  valid  reasons  for  so 
considering  it ; 8  that  a  fee  charged  by  an  ordinance  styling  it 
wharfage  "is  not  real  wharfage,  but  a  duty  on  tonnage."9 
"  The  words  '  fraud  '  and  '  conspiracy '  alone,  no  matter  how 
Often  repeated  in  a  pleading,  cannot  make  a  case  for  the  inter- 
ference of  a  court  of  equity.  Until  connected  with  some  specific 
acts  for  which  one  person  is  in  law  responsible  to  another,  they 
have  no  more  effect  than  other  words  of  unpleasant  significa- 
tion."10 An  averment  that  a  thing  was  done  with  the  intent  to 
defraud  is  an  allegation  of  fact.11  A  demurrer  does  not  admit  a 
false  allegation  concerning  a  fact  of  which  the  court  will  take 
judicial  notice.12  An  allegation  as  to  the  future  effect  of  an  act 
threatened  by  the  defendant  will,  however,  be  admitted  by  a 
demurrer.13 

§  107.  Demurrers  to  Parts  of  Bills.  —  A  demurrer  may  be  to 
the  whole  or  to  a  part  of  a  bill.1  Separate  demurrers  may  be  filed 
for  different  causes  to  separate  parts  of  a  bill.2  If  only  a  part  of 
the  bill  be  demurred  to,  the  demurrer  must  be  accompanied  by 
a  plea  or  answer  to  what  remains.3  The  defendant  ma}r  demur 
to  part,  plead  to  part,  and  answer  as  to  the  residue.4  Such  a 
mode  of  pleading  is  now,  however,  very  rare ;  for  the  same  de- 
fenses can  usually  be  embraced  with  more  convenience  and  safety 
in  an  answer.5  "  If  a  demurrer  is  too  general,  that  is,  if  it  covers, 
or  is  applied  to  the  whole  bill,  when  it  is  good  to  a  part  only  ;  or 
if  it  is  a  demurrer  to  a  part  of  a  bill  only,  but  yet  is  not  good  to 
the  full  extent  which  it  covers,  but  is  so  to  a  part  only,  it  will  be 
overruled  ;  for  it  is  a  general  rule  that  a  demurrer  (it  is  other- 
wise as  to  a  plea)  cannot  be  good  as  to  a  part  which  it  covers, 
and  bad  as  to  the  rest,  and  therefore  it  must  stand  or  fall  alto- 

107   U.   S.  6P1 ;   Louisville  &  Nashville  Compare  Louisville  &  Nashville  R.  R.  Co. 

R.  R.  Co.  v.  Palmes,  109  U.  S.  244.  v.  Palmes,  109  U.  S.  244,  253. 

8  Packet  Company  v.  Catlettsburg,  105  13  St.  Louis  v.  Knapp  Company,  104 
U.  S.  559.  U.  S.  658. 

9  Transportation  Company  v.  Parkers-  §107.   1  Rule  32. 

burg,  107  U.  S.  691.  2  North  v.  Earl  of  Strafford,  3  P.  Wms. 

10  Chief  Justice  Waife   in   Ambler  v.  148;    Roberdeau   v.   Rous,    1    Atk.  544; 
Clioteau,  107  U  S.  586,  591.     For  allega-  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  584. 
tions   held  sufficient,  see  Pacific  R.  R.  of  3  See  Story's  Eq.  PI.  §  442;   Daniell's 
Mo.  v.  Missouri  Pacific  Ry.  Co.,  Ill  U.  S.  Ch.  Pr.  (5th  Am.  ed.)  583. 

i  505.  *  Rule  32. 

«  Piatt  v.  Mead,  9  Fed.  R.  91.  5  Rule  39. 

11  Taylor   v.  Barclay,   2  Simons,  213. 


§  107.]  DEMUEEEES   TO    PAETS    OF   BILLS.  173 

gether." 6  The  court  may,  however,  allow  the  defendant  to 
amend  his  demurrer  upon  narrowing  its  terms.7  The  equity 
rules,  changing  the  former  practice,  now  provide  that  "  no  de- 
murrer or  plea  shall  be  overruled  upon  argument,  only  because 
such  demurrer  or  plea  shall  not  cover  so  much  of  the  bill  as  it 
might  by  law  have  extended  to."  8  Formerly,  when  a  defendant 
filed  a  plea  or  answer  to  the  same  part  of  a  bill  as  he  demurred  to, 
he  was  held  to  have  waived  his  demurrer,  which  would  be  over- 
ruled by  the  court.9  But  a  demurrer  by  one  defendant  was  not 
overruled  by  a  plea  or  answer  filed  by  another.10  Now,  how- 
ever, the  rules  declare  that  "  no  demurrer  or  plea  shall  be  held 
bad,  and  overruled  upon  argument,  only  because  the  answer  of 
the  defendant  may  extend  to  some  part  of  the  same  matter  as 
may  be  covered  by  the  demurrer  or  plea.'"  u  It  has  been  held, 
under  this  rule,  that  a  demurrer  to  the  whole  bill  is  not  over- 
ruled by  plea  or  answer : 12  but  the  defendant  may  be  compelled 
upon  motion  to  elect  between  such  a  demurrer  and  the  answer 
or  plea;13  and  if  he  elect  to  stand  by  his  demurrer,  it  seems  that 
he  will  thereby  waive  his  right  to  answer  should  his  demurrer 
be  overruled.14  By  proceeding  to  an  argument  of  the  demurrer, 
an  objection  of  this  nature  will  be  waived.15  The  English  courts 
have  held,  that  a  defendant  cannot  answer  to  the  relief  of  a  bill 
and  demur  to  the  discovery,  unless  he  can  rest  his  demurrer  upon 
one  of  the  recognized  grounds  on  account  of  which  a  witness  is 
always  excused  from  answering.16     A  demurrer  which  is  good  as 

6  Story's  Eq.  PI.  §  443;  Metcalf  v.  9  Story's  Eq.  PI.  §  443;  Dawson  v. 
Hervey,  1  Ves.  Sen.  248;  Verplank  v.  Sadler,  1  Sim.  &  S.  537,  542;  LangdelTa 
Caines,   1    J.   Ch.    (N.   Y.)    57;    Higin-    Eq.  PI.  §  103. 

botham  v.  Burnet,  5  J.  Ch.  (N.  Y.)   184 ;  "  Dakin  v.  Union  Pacific  Ry.  Co.,  5 

Atwill  v.  Ferrett,  2  Blatchf.  39;  Brandon  Fed.  R.  665. 

Manue.   Co.   v.  Prime,  14   Blatchf.   371  ;  "  Rule  37. 

8.  c.  3  Bann.  &  A.  Pat.  Cas.  191 ;  Heatli  12  Hayes  v.  Dayton,  8  Fed.  R.  702,  706. 

v.  Erie  Ry.  Co.,  8  Blatchf.  347  ;  Equitable  Contra,  Crescent  City  Live  Stock  Co.  v. 

Life  Ass.  Soc.  v.  Patterson,  1  Fed.  R.  126.  Butchers'  Union  Live  Stock  Co.,  12  Fed. 

7  Baker  v.  Mellish,  11  Ves.  70;  Gregg  R.  225;  Adams  v.  Howard,  21  Off.  Gaz. 
v.   Legh,   4    Madd.  192,   207  ;    Atwill   v.  264 ;  s.  c.  9  Fed.  R.  347. 

Ferrett,  2  Blatchf.  39,  49.  "  Adams  v.  Howard,  21  Off.  Gaz.  264  ; 

8  Rule  36,  which  follows  the  36th  Order  s.  c.  9  Fed.  R.  347.     See  United  States  v. 
in  Chancery  of  August,  1841.     See,  how-  Am.  Bell  Telephone  Co.,  30  Fed.  R.  523. 
ever.  Dell  v.  Hale,  2  Y.  &  C.  N.  R.   1 ;  14  Adams  v.  Howard,  21  Off.  Gaz.  264  ; 
Atwill  v.  Ferrett,  2  Blatchf.  39 ;  Heatli  s.  c.  9   Fed.  R.  347  ;    Orendorf   v.   Bud- 
r.  Erie  Ry.  Co.,  8  Blatchf.  347;  Brandon  long,  12  Fed.  R.  24. 

Manuf.  Co.  v.  Prime,  14  Blatchf.  371;  15  Hayes  v.  Dayton,  8  Fed.  R.  702,  700. 
8.  c.  3  Bann.  &  A.  Pat.  Cas.  191;  Equitable  16  Dell  v.  Hale,  2  Y.  &  C.  N.  R.  1  ; 
Life  Ass.  Soc.  v.  Patterson,  1  Fed.  R.  126.      Brownsword   v.   Edwards,   2    Ves.    Sen 


174  DEMURRERS.  [CHAP.  VIII. 

to  the  relief  will  also  bar  the  discovery ;  although  if  the  bill  be 
good  for  discovery  but  not  for  relief,  the  defendant  does  not 
prejudice  a  demurrer  filed  by  him  to  the  relief  by  answering  as 
to  the  discovery.17  A  demurrer  which  is  good  as  to  the  dis- 
covery need  not  be  good  as  to  the  relief.18 

§  108.  Classification  of  Demurrers  to  the  Relief.  —  Demurrers  to 
the  relief  claim  that  for  some  reason  apparent  upon  the  face  of 
the  bill  the  plaintiff  is  not  entitled  to  the  relief  prayed  for  in  it. 
They  are  classified  by  Mitford,  afterwards  Lord  Redesdale,  sub- 
stantially as  follows.1  Demurrers  to  the  relief  are  founded  on 
objections  to  the  jurisdiction  ;  to  the  person ;  or  to  the  matter  of 
the  bill,  either  in  substance  or  in  form.  Demurrers  to  the  juris- 
diction are  allowed  either  (1)  because  the  subject  of  the  suit  is 
not  within  the  jurisdiction  of  a  court  of  equity  ;  or  (2)  because 
some  other  court  of  equity  has  the  proper  jurisdiction.  A 
demurrer  of  this  last  class  is  much  more  frequent  now  than 
formerly.  For  the  rule,  that  in  a  superior  court  of  general 
jurisdiction  the  presumption  is  that  nothing  shall  be  intended 
out  of  its  jurisdiction  that  is  not  shown  or  intended  to  be  so,'2 
does  not  apply  to  the  courts  of  the  United  States,  whose  juris- 
diction is  confined  to  what  is  expressly  given  them  by  the  Con- 
stitution and  statutes  ;  and  must  always  appear  upon  the  record.3 
It  has  been  held  that  the  objection  that  one  of  two  plaintiffs 
suing  to  enforce  a  common,  not  a  joint,  right  is  a  citizen  of  the 
same  State  as  a  defendant,  cannot  be  raised  by  a  demurrer  to 
the  whole  bill.4  Causes  of  demurrer  to  the  person  are,  that  it 
appears  upon  the  face  of  the  bill  that  the  plaintiff  has  not  the 
legal  capacity  to  sue,  —  either  at  all,  as  an  alien  enemy,  or  an 
unincorporated  association  suing  as  a  corporation ;  or  alone,  as 
an  infant,  idiot,  lunatic,  and  in  some  States  a  married  woman.5 
Demurrers  to  the  substance  of  a  bill  are  that  it  appears  upon 

243-    Daniell'8   Ch.   Pr.    (2d    Am.    ed.)  §108.  *  Mitford's  PI.  ch.  11,  §  2. 

605-607.  2  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  615; 

"  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  604,  Earl  of  Derby  v.  Duke  of  Athol,  1  Ves. 

605 ;   Langdc41's  Eq.  PI.  §  103  ;   Story's  Sen.  203. 

Eq.  PI.  §  312  ;  Rules  36,  37  ;   Jefferys  v.  3  Turner  v.  Bank  of  North  America,  4 

Baldwin,  Amb.  164  ;  Hodgkin  v.  Longden,  Dall.  8 ;  Godfrey  v.  Terry,  97  U.  S.  171. 

8  Ves.  2 ;  Todd  v.  Gee,  17  Ves.  273.  4  Nebraska  City  National  Bank  v.  Ne- 

i8  Atw'ill  v.  Ferrett,'  2  Blatchf.  39,  43;  braska  City  Hydraulic  Gas  Light  Co.,  14 

Heath  v.  Erie  lly.  Co.,  8  Blatchf.  348  ;  Fed.  R.  763.    But  see  Hodge  v.  North  Mia- 

Farmer  v.  Calvert  Lithographing  Co.,  1  souri  R.  R.  Co.,  1  Dill.  104. 

Flippin,  228.  6  See  Chapter  II. 


§  108.]        CLASSIFICATION   OF   DEMURRERS   TO   THE   RELIEF.  175 

the  face  of  the  bill :  (1)  That  the  plaintiff  has  no  interest  in 
the  subject-matter  of  the  bill.  It  has  been  held  that  the  objec- 
tion that  one  of  two  plaintiffs  has  no  interest  in  the  subject- 
matter  can  be  raised  by  a  general  demurrer  for  want  of  equity.6 
(2)  That  the  defendant  is  not  answerable  to  him,  but  to  some 
other  person.  (3)  That  the  defendant  has  no  interest  in  the 
subject-matter  of  the  suit.  (4)  That  the  plaintiff  is  not  en- 
titled to  the  relief  he  prays ;  but  if  the  bill  show  a  case  for  some 
relief,  and  yet  ask  for  too  much  or  the  wrong  relief,  it  is  not 
demurrable,  provided  it  contain  the  prayer  for  general  relief.7 
(5)  That  the  value  of  the. subject-matter  is  beneath  the  dignity 
of  the  court.  In  England  the  Court  of  Chancery  declined  to 
interfere  when  the  value  of  the  matter  in  dispute  was  less  than 
ten  pounds,  except  in  suits  brought  by  or  on  behalf  of  charities, 
under  bills  to  obtain  relief  on  account  of  fraud,  or  to  establish  a 
right.8  In  the  Circuit  Courts  of  the  United  States  the  bill 
should  show  affirmatively  that  the  matter  in  dispute  exceeds  two 
thousand  dollars,9  except  in  certain  cases  for  which  the  statutes 
specially  provide.10  (6)  That  the  bill  does  not  embrace  the  whole 
matter  concerning  which  the  suit  is  brought,  and  which  is 
capable  of  being  immediately  disposed  of,  so  that  there  is  danger 
of  the  defendant's  being  harassed  with  other  suits  about  the 
same.11  (7)  That  there  is  a  want  of  proper  parties,  plaintiff  or 
defendant.12  (8)  That  there  is  a  misjoinder 13  of  parties  plaintiff. 
A  superfluity  of  defendants,  not  accompanied  by  multifarious- 
ness, is  the  subject  of  objection  by  those  only  who  were  im- 
properly joined.14  (10)  That  the  plaintiff's  remedy  is  barred  by 
length  of  time  or  laches.16     When  a  bill  praying  an  injunction  to 

6  Hodge  v.  North  Missouri  R.  R.,  1  worth  v.  Laycock,  1  Vern.  245;  Mar- 
Dillon,  104.     But  see  Nebraska  City  Na-     grave  v.  Le  Hooke,  2  Vern.  207. 

tional  Bank  v.  Nebraska  City  Hydraulic  12  Dwight  v.  Central  Vt.  R.  R.  Co.,  9 

Gas  Light  Co.,  14  Fed.  R.  763.     '  Fed.  R.  785. 

7  Patrick  v.  Isenhart,  20  Fed.  R.  339 ;  is  Walker  v.  Powers,  104  TJ.  S.  245 ; 
Whitbeck  v.  Edgar,  2  Barb.  Ch.  (N.  Y.)  Lansdale  v.  Smith,  106  U.  S.  391 ;  Taylor 
106.  v.  Holmes,  14   Fed.  R.  498 ;   Markey  v. 

8  Darnell's  Ch.  Pr.  (2d  Am.  ed.)  378,  Mutual  Benefit  Life  Ins.  Co.,  6  Ins.  L.  J. 
379;  Brace  v.  Taylor,  2  Atk.  253;  Moore  537 ;  Wollensak  v.  Reilier,  115  U.  S.  96. 
v.  Lyttle,  4  J.  Ch.  (N.  Y.)  183.  14  Cherrey  v.  Monro,  2  Barb.  Ch.  (N.  Y.) 

9  United  States  v.  Pratt  Coal  &  Coke  618 ;  Toulmin  v.  Hamilton,  7  Ala.  362. 
Co.,  18  Fed.  R.  708  ;  24  St.  at  L.  ch.  373.  But  see  Bank  v.  Carrollton  R.  R.,  11 
But  see  Sharon  v.  Terry,  36  Fed.  R.  337.  Wall.  624. 

10  See  §§  15,  16.  15  Maxwell  v.  Kennedy,  8  How.  210  ; 

11  Anon.,  2  Chancery  Cases,  164  ;  Pure-  Badger  v.  Badger,  2  Wall.  87, 94 ;  Marsh  v. 
foy  v.    Purefoy,   1   Vern.   29;    Shuttle-     Whitmore,  21  Wall.  185 ;  Sullivan  v.  Port- 


176  DEMURRERS.  [CHAP.  VIII. 

restrain  the  infringement  of  a  reissued  patent  sets  out  or  exhibits 
both   the  original  and   the  reissued  patent,  and  it  appears  from 
inspection  that  the  sole  object  of  the  reissue  was  to  enlarge  and 
expand  the  claims  of  the  original,  and  that  a  delay  of  two  or 
three  years  has  taken   place  in  applying   for  the  reissue,  not 
explained  by  special  circumstances  giving  sufficient  ground  for 
the  delay,  the  question  of  laches  is  a  question  of  law  arising  on 
the  face  of  the  bill,  which  avails  as  a  defense,  upon  a  general 
demurrer  for  want  of  equity.16     If  it  appears  by  the  face  of  the 
bill  that  the  case  of  the  complainant  is  barred  by  the  statute  of 
limitations,  it  is  demurrable.17     A  demurrer  will  also  be  sustained 
where  the  bill  shows  that  the  plaintiff's  case  is  repugnant  to  the 
statute  of  frauds.18     (11)  That  the  bill  is  multifarious.19     It  has 
been  held  that  only  such  defendants  as  would  suffer  by  the  mul- 
tifariousness can  raise  this  objection.20      Or  (12)   that  there  is 
another  suit  pending  between  the  parties  for  the  same  cause 
of  action.    Demurrers  for  insufficiency  as  to  form  are  eilher :  (1) 
That  the  plaintiff's  place  of  abode  is  not  stated  ;  or  that  a  compli- 
ance has  not  been  made  with  any  of  the  other  requisites  of  Rule 
20.21     (2)  That  the  facts  essential  to  the  plaintiff's  right  and 
within  his  own  knowledge  are  not  alleged  positively.22    (3)  That 
the  bill  is  deficient  in  certainty.23     (4)  That  the  plaintiff  does 
not  in  his  bill  offer  to  do    equity,   when  it  is  the   custom   of 
the  court  to  require  him  to  do  so.2*      (5)  That  the  bill  is  not 
signed  by  counsel.25     (6)  That  the  bill  is  not  supported  by  an 
affidavit  when   one    is   necessary.26      A  demurrer  to   the  relief 
will  not  lie  upon  the  ground  that  the  bill  contains  irrelevant 
matter.      The  proper  remedy  for  this  is  an  exception  for  im- 

land  &  K.  Railroad  Company,  94  U.  S.         19  See  §§  71-75. 

806;  Brown  v.  County  of  Buena  Vista,         ->  Atwill  v.  Ferrett,  2  Blatchf.  39,  44; 

95  U.   S.  161;    Godden   v.   Kimmell,   99  Buerk  v.  Imhaeuser,  8  Fed.  R.  457;   Hill 

U.  S.  201 ;   National  Bank  v.  Carpenter,  v.   Bonaffon,  2   Weekly  Notes  of  Cases 

101  U.  S.  567.  (Pa ■).  356. 

is  Wollensak  v.  Reiher,  115  U.  S.  96,         21  Mitford's  PL  ch.  2,  §  2 ;  Rowley  v. 

101.  Eceles,  1  Sim.  &  S.  511. 

«  Godden  v.  Kimmell,  99  U.   S.  201 ;         -2  Mitford's  Pl.ch.2,§  2;  Daniell's  Ch. 

National  Bank  v.  Carpenter,   101  U.  S.  Pr.  412,  625. 

567;  Wisnerr.  Barnet,  4  Wash.  631.    But         »  Taylor  v.  Holmes,  14  Fed.  R.  498; 

see  Sullivan  v.  Portland  &  Kennebec  R.  Goldsmith  v.  Gilliland,  22  Fed.  R.  865. 
R.  Co.,  94  TJ.  S.  806,  811 ;  Doe  v.  Hyde,         24  United  States  v.  Pratt  Coal  &  Coke 

114  U.'  S.  247 ;  Philippi  v.  Philippe,"  115  Co.,  18  Fed.  R.  708.     See  §  82. 
U.  S.  151.  25  Rule  24;  Dwight  v.  Humphreys,  3 

18  Randall  v.  Howard,  2  Black,  585,  M'Lean,  104. 
589.  *  Findlay  v.  Hinde,  1  Pet.  241,  244. 


§  109.]  DEMURRERS   TO   THE   DISCOVERY.  177 

pertinence.27  Neither  is  a  bill  demurrable  because  indispensable 
parties,  whom  it  names  and  against  whom  it  prays  process,  have 
not  been  served  with  subpoenas  to  appear  and  answer.28  If  any 
part  of  the  relief  prayed  is  proper  the  demurrer  will  be  sustained.29 
§  109.  Demurrers  to  the  Discovery.  —  A  demurrer  to  the  dis- 
covery claims  that,  for  some  reason  apparent  upon  the  face  of 
the  bill,  the  defendant  should  not  be  obliged  to  answer  so  much 
thereof  as  his  demurrer  covers.  Professor  Langdell  says :  "  A 
demurrer  to  discovery  indeed  is  not  in  its  nature  a  demurrer  at 
all,  but  a  mere  statement  in  writing  that  the  defendant  refuses 
to  answer  certain  allegations  in  the  bill,  for  reasons  which  appear 
upon  the  face  of  the  bill,  and  which  the  demurrer  points  out."  * 
A  defendant  may  thus  demur  because  (1)  his  answer  may  sub- 
ject him  to  a  pain,  penalty,  or  forfeiture;2  (2)  that  it  is  imma- 
terial to  the  purposes  of  the  suit ; 3  (3)  that  it  would  involve  a 
breach  of  some  confidence  which  it  is  the  policy  of  the  law  to 
preserve  inviolate,4  as  a  professional  confidence,5  or  one  obtained 
in  the  course  of  a  public  office;6  (4)  that  the  matters  of  which 
a  discoveiy  is  sought  pertain  exclusively  to  the  defendant's  case;7 
(5)  according  to  the  old  rule,  because  the  defendant  has,  "  in 
conscience,  a  right  equal  to  that  claimed  by  a  person  filing  a  bill 
against  him,  though  not  clothed  with  a  perfect  legal  title,"8  as, 
if  he  be  a  purchaser  in  good  faith,  and  for  a  valuable  consider- 
ation, without  any  notice  of  the  plaintiff's  claim.9  Where  the 
complainant  is  the  only  person  who  can  insist  upon  the  penalty 
or  forfeiture,  and  he  waives  it  in  his  bill,  he  may  compel  a  dis- 


27  Pacific  Railroad  of  Missouri  v.  Mis-  4  Story's  Eq.  PI.  §  547. 

souri  Pacific  Railway  Co.,  Ill  U.  S.  505,  5  Greenough   v.  Gaskell,  1  Myl.  &  K. 

522 ;  Rule  26.  100 ;    Story's  Eq.   PI.  §   547,  and  cases 

28  Kilgour  v.  New  Orleans  Gas  Light  cited. 

Co.,  2  Woods,  145.  6  Smith  v.  East  India  Co.,  1  Phillips, 

29  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  50;  Attorney-General  r.  London,  12  Bea  v. 
Hartshorn,  30  Fed.  R.  541.  8;    Worthington  v.  Scribner,  109  Mass. 

§  109.   *  Langdell'a  Eq  PL  §  97.  487,  493. 

2  Stewart  v.  Drasha,  4  M'Lean,  563;  7  Bolton  v.  Corporation  of  Liverpool, 
Atwill  v.  Ferrett,  2  Blatchf.  39;  United  1  Myl.  &  K.  88;  Daniell's  Ch.  Pr.  (2d 
States  v.  White,  17   Fed.   R.   561,   565;  Am.  ed.)  645-648. 

Paxton  v.  Douglas,  19  Ves.  225;  Story's  8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  635, 

Eq.  PL  §§  575-599.  636. 

3  Harvey  v.  Morris,  Rep.  temp.  Finch,  9  Jerrard  v.  Saunders,  2  Ves.  Jr.  454; 
214;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  636,  Glegg  v.  Legh,  4  Madd.  193;  Langdell's 
637.    But  see  Pacific  Railroad  of  Missouri  Eq.  PL  §  188. 

v.  Missouri  Pacific  Railway  Co.,  Ill  U.  S. 
505,  522. 

12 


178  DEMURRERS.  [CHAP.  VIII. 

covery.10  In  certain  cases,  a  defendant  may  be  obliged  to  answer 
to  a  charge  of  a  fraud  which  might  subject  him  to  a  criminal 
prosecution.11  An  English  case  holds  that  a  discovery  can  be 
compelled  although  a  defendant  might  thereby  admit  his  guilt  of 
an  offence  against  the  criminal  laws  of  a  foreign  country.12  De- 
murrers to  the  discovery  are  now  rarely  filed.  For  the  objections 
to  the  discovery  do  not  usually  appear  upon  the  face  of  a  bill, 
and  when  they  do,  it  seems  that,  since  the  equity  rules,  they  can 
now  in  all  cases  be  taken  by  answer.13  A  demurrer  to  an  inter- 
rogatory that  has  been  already  answered  cannot  raise  the  ques- 
tion whether  the  answer  to  it  is  sufficient.14  The  subject  of 
discovery  is  of  much  less  importance  now  than  formerly ;  and 
the  curious  reader  is  therefore  referred  to  the  works  of  Wigram 
and  Hare  for  a  full  discussion  of  it. 

§  110.  Of  what  Defects  Advantage  should  be  taken  by  Demurrer.  — 
Advantage  can  be  taken  of  most  defects  in  a  bill  by  answer,  as 
well  as  by  demurrer.  But  objections  to  defects  in  the  form  of  a 
bill,  except  possibly  those  which  are  required  by  the  equity 
rules,1  can  only  be  raised  by  demurrer.2  Such  is  an  omission  to 
allege  that  two  defendants  infringed  a  patent  jointly.3  If  the 
want  of  equity  of  the  plaintiff's  case  be  clearly  apparent  upon 
the  face  of  the  bill,  an  omission  to  demur  may  be  a  ground  for 
refusing  the  defendant  costs  at  the  hearing.4  The  objection  that 
the  plaintiff  has  an  adequate  remedy  at  law  must  be  specifically 
raised  in  a  demurrer,  plea,  or  answer.5 

§  111.  "When  a  Demurrer  should  be  Filed.  — "  It  shall  be  the 
duty  of  the  defendant,  unless  his  time  shall  be  otherwise  en- 
larged, for  cause  shown  by  a  judge  of  the  court  upon  motion  for 
that  purpose,  to  file  his  plea,  demurrer,  or  answer  to  the  bill  in 

1U  Mason  v.  Lake,  2  Brown  P.  C.  405 ;  §  110.  *  See  National  Bank  v.  Insur- 

Lord  Uxbridge  v.  Staveland,  1  Ves.  Sen.  ance  Company,  104  U.  S.  54,  76. 

56;  Atwill  r^Ferrett,  2  Blatchf.  39.  •  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  453; 

11  Dummer  i>.  Corporation  of  Chippen-  Story's  Eq.  PL  §§  453,  528;  Hook  v. 
ham,  14  Ves.  245,  251  ;  Story's  Eq.  PI.  Dorman,  1  Sim.  &  S.  227 ;  Crosse  v.  Bed- 
§  £78;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  ingfield,  12  Simons,  35  ;  Findlay  v.  Hinde, 
631,632.  1  Pet.  244;   Fischer  v.  O'Shaughnessey, 

12  King  of  Two  Sicilies  v.  Willcox,  1  6  Fed.  R.  92. 

Simons  n.  s.  301.     See  also  United  States  3  Fischer  v.  O'Shaughnessey,  6  Fed.  R. 

of  America  v.  McRae,  L.  R.  4  Eq.  327  ;  92. 

s.  c.  on  appeal,  L.  R.  3  Ch.  App.  79.  4  Harland  v.  Bankers'  &  M.  Tel.  Co.,  32 

13  See  Rules  39,  44.  Fed.  R.  305. 

14  Chicago,  St.  Louis  &  New  Orleans  5  Reynes  v.  Dnmont,  130  U.  S.  354  ; 
R.  R.  Co.  v.  Macomb,  2  Fed.  R.  18.  Kilburn  v.  Sunderland,  130  U.  S.  505. 


§  114]  FORM   OF   A   DEMURRER.  179 

the  clerk's  office  on  the  rule-day  next  succeeding  that  of  entering 
his  appearance.  In  default  thereof,  the  plaintiff  may  at  his  elec- 
tion enter  an  order  (as  of  course)  in  the  order-book,  that  the  bill 
be  taken  pro  confesso ;  and  thereupon  the  cause  shall  be  pro- 
ceeded in  ex  parte,  and  the  matter  of  the  bill  may  be  decreed  by 
the  court  at  any  time  after  the  expiration  of  thirty  days  from  and 
after  the  entry  of  said  order,  if  the  same  can  be  done  without  an 
answer  and  is  proper  to  be  decreed."  l  The  demurrer  may  be 
filed,  even  after  the  rule-day,  at  any  time  before  an  order  has 
been  entered  directing  that  the  bill  be  taken  pro  confesso,2-  or 
after  such  an  order  by  leave  of  the  court.3 

§  112.  Title  of  Demurrer.  —  A  demurrer  is  usually  entitled  sub- 
stantially thus:  "The  demurrer  of  John  Stiles  to  the  bill  of 
complaint  of  Richard  Roe."1  If  accompanied  by  a  plea  or 
answer,  or  both,  it  should  be  called  in  the  title  "  the  demurrer 
and  plea,"  or  "  the  demurrer  and  answer,"  or  "  the  demurrer, 
plea,  and  answer."2  When  it  is  to  an  amended  bill,  it  need  not 
be  expressed  in  the  title  to  be  a  demurrer  to  both  the  original 
and  the  amended  bill  ;  but  if  designated  as  a  demurrer  to  the 
amended  bill,  that  will  be  sufficient.3 

§  113.  Protestation.  —  After  the  title  formerly  followed  the 
clause,  "  This  defendant,  by  protestation,  not  confessing  all  or 
any  of  the  matters  and  things  in  the  said  complainant's  bill 
contained,  to  be  true  in  such  manner  and  form  as  the  same  are 
therein  set  forth  and  alleged."  1  This  was  a  practice  borrowed 
from  the  common  law,  and  was  probably  intended  to  avoid  con- 
clusion in  another  suit;2  but  it  is  a  needless  form,3  and  may 
well  be  omitted. 

§  114.  Statement  of  the  Extent  of  the  Demurrer.  —  If  a  demurrer 
be  not  to  the  whole  bill,  it  must  clearly  express  those  parts  which 
it  is  designed  to  cover.1  "  And  this  must  be  done  not  by  way 
of  exception,  as  by  demurring  to  all  except  certain   parts  of 

§  111.   !  Rule  18.  2  Mitford's  PI.  ch.  2,  §  2  ;  Taylor  v. 

2  Rule  32  ;  Oliver  v.  Decatur,  4  Cranch  Holmes,  14  Fed.  R.  408. 

C.  C  458.  8  Story's  Eq.  PI.  §  452. 

8  Rule  32.  §  114.  J  Devonslier  v.  Newenliam,  2Sch. 

§  112.  i  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  &  Lei  199;  Chetwynd  v.  Lindon,  2  Ves. 

652.  Sen.  450;  Salkelil  v.  Science,  2  Vcs.  Sen. 
2  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  652,  107;    Atwill  v.  Ferrett,   2   Blatchf.  39; 

653.  Chicago,  St.  L.  &  N.  O.  R.  R.  Co.  v.  Ma- 
8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)653;  comb,  2  Fed.  R.  18;   Daniell's   Ch.  Pr. 

Smith  v.  Bryon,  3  Madd.  428.  (2d  Am.   ed.)   653,  G54;  Story's  Eq.  PL 

§  113.  i  Story's  Eq.  PI.  §  455,  n.  3.  §§  457,  458. 


180  DEMURRERS.  [CHAP.  VIIL 

the  bill,  but  by  a  positive  definition  of  the  parts  to  which  the 
defendant  seeks  to  avoid  making  any  answer."2  A  special  de- 
murrer should  point  out  specifically  by  paragraph,  page,  or  folio, 
or  in  some  other  distinct  form  of  reference,  the  parts  of  the  bill 
to  which  it  is  intended  to  apply.3  When  the  bill  was  long,  a 
special  demurrer  "  to  so  much  of  the  bill  as  seeks  "  certain  relief, 
without  further  specifying  the  part  demurred  to,  has  been  held 
bad.4  A  demurrer  may,  however,  be  expressed  as  to  the  whole 
bill  except  to  a  specified  part.5 

§  115.  Statement  of  Causes  of  Demurrer.  —  By  the  English 
practice  a  demurrer  was  required  to  contain  a  statement  of  its 
causes,  otherwise  it  would  be  overruled.1  It  is  the  safer  practice 
for  the  pleader  to  comply  with  this.  It  was,  however,  said  in  a 
recent  case :  "  The  formal  statement  of  causes  of  a  demurrer, 
though  usual,  is  not  necessary.  The  assertion  of  a  general  de- 
murrer is  that  the  plaintiff  has  not,  on  his  own  showing,  made 
out  a  case.  If  the  causes  of  demurrer  are  not  formally  set  forth 
the  plaintiff  may  object,  and  require  them  to  be  thus  stated."2 
Demurrers  are  either  general  or  special.  They  are  general,  when 
no  particular  cause  is  assigned  except  the  usual  formulary,  to 
comply  with  the  rules  of  the  court,  that  there  is  no  equity  in  the 
bill.3  Such  a  one  is  called  a  demurrer  for  want  of  equity.  They 
are  special,  when  the  particular  defects  or  objections  are  pointed 
out.  The  former  will  be  sufficient,  although  special  causes  are 
usually  stated,  when  the  bill  is  defective  in  substance.  The 
latter  is  indispensable  when  the  objection  is  to  the  defects  of 
the  bill  in  point  of  form.4  But  under  a  general  demurrer  a 
defendant  may  take  advantage  of  a  few  objections  which  appear 
to  be  as  to  matters  of  form.  Thus,  under  a  demurrer  for  want 
of  equity,  the  objection  that  a  necessary  affidavit  is  wanting,  or 
that  the  plaintiff  has  not  offered  to  do  equity  when  that  is  re- 

2  Story's  Eq.  PL  §  457;  Robinson  v.  Cary,125;  Offeley  v.  Morgan,  Gary,  153; 
Thompson,  2  Ves.  &  B.  118;  Devonsher  Peachie  v.  Twyecrosse,  Cary,  113;  Dan- 
t;.  Newenham,  2  Sch.  &  Lef.  205.  iell's  Ch.  Pr.  (2d  Am.  ed.)  655. 

3  Atwill  v.  Ferrett,  2  Blatchf .  39;  Chi-  2  Taylor  v.  Holmes,  14  Fed.  R.  498, 
cago,  St.  Louis,  &  N.  O.  R.  R.  Co.  v.  Ma-  499  ;  Ver  Dick,  D.  J. 

comb,  2  Fed.  R.  18.  3  Story's  Eq.  PI.  §  455 ;  Langdell's  Eq. 

*  Atwill  v.  Ferrett,  2  Blatchf.  39.  PI.  §  95. 

5  Hicks  v.  Raincock,  1  Cox,  40;  Howe         4  Story's    Eq.   PI.   §  455.      See  also 

v.  Duppa,  1  Ves.  &  B.  511 ;  Daniell's  Ch.  Beames'  Orders  in   Chancery,   77,   173 ; 

Pr.  (2d  Am.  ed.)  654.  Mitford's  PL  ch.  2,  §  2  ;   Daniell's  Ch. 

§  115.  »  Langdell's  Eq.  PL  §  96;  San-  Pr.  (2d  Am.  ed.)  655.     But  see  Taylor  v 

ders'  Orders,  180, 223 ;  Duffield  v.  Greaves,  Holmes,  14  Fed.  R.  498,  499. 


§  115.]  STATEMENT   OF   CAUSES    OF   DEMURRER.  181 

quired,  may  be  raised.5  So,  may  a  lack  of  sufficient  positiveness 
in  the  statement  of  facts  in  the  bill,6  and  a  misjoinder  of  plaintiffs 
by  the  addition  of  one  with  no  interest  in  the  subject  of  the  bill.7 
But  it  has  been  held  that  a  general  demurrer  for  want  of  equity 
will  not  cover  an  objection  to  the  discovery  only.  That,  it  was 
said,  must  be  made  the  subject  of  a  special  demurrer.8  A  de- 
fendant may,  however,  in  cases  where  he  demurs  to  the  substance 
of  the  bill,  in  which  term  is  included  an  apparent  defect  of  juris- 
diction, state  specially  the  different  grounds  upon  which  he 
founds  his  objection;9  and,  indeed,  some  of  these  grounds  of 
demurrer  seem  to  require  a  more  particular  statement.  Thus, 
a  demurrer  for  want  of  parties  should  show  who  are  the  neces- 
sary parties  that  have  been  omitted,  not  necessarily  by  name, 
but  in  such  a  manner  as  to  point  out  to  the  plaintiff  the  objec- 
tions to  his  bill,  so  that  he  may  amend  by  adding  the  proper 
parties.10  But  it  has  been  said  that  this  rule  does  not  apply 
where  it  appears  from  the  face  of  the  bill  that  the  plaintiff  has 
sufficient  information  as  to  the  names,  interests,  and  residences 
of  the  proper  parties.11  It  is  said  by  Mr.  Daniell  that  "  in  the 
case  of  a  demurrer  for  multifariousness,  a  mere  allegation  '  that 
the  bill  is  multifarious  '  will  be  informal ;  it  should  state,  as  the 
ground  of  demurrer,  that  the  bill  unites  distinct  matters  upon 
one  record,  and  show  the  inconvenience  of  so  doing."12  But 
the  case  cited  by  him  does  not  seem  to  hold  that  the  more 
general  form  is  bad.13  A  defendant  is  not  limited  to  show  one 
cause  of  demurrer  only ;  he  may  assign  as  many  causes  of 
demurrer  as  he  pleases,  either  to  the  whole  bill  or  to  each  part 
demurred  to,  and  if  any  one  of  the  causes  of  demurrer  assigned 
hold  good  the  demurrer  will  be  allowed.14  When,  however,  two 
or  more  causes  of  demurrer  are  shown  to  the  whole  bill  the  court 

6  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  655.       369;  Dwightu.  Central  Vermont  R.R.  Co., 

6  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  655.       9  Fed.  R.  785 ;  Taylor  v.  Holmes,  14  Fed. 

7  Hodge  v.  North  Missouri  R.  R.  Co.,     R.  498,  499. 

1  Dill.  104.  "  Taylor  v.  Holmes,  14  Fed.  R.  498, 

8  Whittingham  v.  Burgoyne,  3  Anst.     499. 

900 ;  Daniell's  Ch.  Pr.  (2d  Am.  ed  )  656.  12  Daniell's  Ch.  Pr.  (2d  Am.  ed)  655. 

9  See,  for  example,  the  statement  of  13  Rayner  v.  Julian,  2  Dickens,  677 ; 
causes  for  the  demurrer  in  Pacific  Rail-  8.  c.  more  fully  reported,  5  Madd.  144, 
road  of  Missouri  v.  Missouri  Pacific  Ry.  note. 

Co..  Ill  U.S.  505,  514.  u  Harrison  v.  Hogg,  2  Ves.  Jr.  323; 

10  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  333,  Jones  v.  Frost,  3  Madd.  9;  s.c.  on  appeal, 

655  ;  Tourton  v.  Flower,  3  P.  Wms.  369 ;  1  Jacobs,  466. 
Attorney-General    v.  Jackson,   11    Ves. 


182  DEMURRERS.  [CHAP.  VIII. 

will  treat  it  as  one  demurrer ;  and  if  one  of  the  causes  be  con- 
sidered sufficient  the  order  will  be  drawn  up,  as  upon  a  complete 
allowance  of  the  demurrer.15 

§116.  Demurrers  ore  tenus.  —  At  the  hearing  other  causes  of 
demurrer  may  be  assigned  orally  ;  when  the  defendant  is  said  to 
demur  ore  tenus}  When  such  a  demurrer  only  is  sustained  and 
the  previously  assigned  causes  are  held  bad,  the  defendant  usually 
recovers  no  costs,2  and  often,  is  obliged  to  pay  costs.3  But  a 
demurrer  ore  tenus  will,  it  has  been  said,  never  be  allowed, 
unless  there  is  a  demurrer  on  record.4  Thus,  when  there  was 
a  plea  on  record,  and  that  was  disallowed,  a  demurrer  ore  tenus 
was  also  disallowed.5  A  demurrer  filed  to  a  part  cannot  at  the 
hearing  ore  tenus  be  extended  to  the  whole  of  the  bill ;  and  such 
a  demurrer  is,  it  seems,  only  permitted  for  some  cause  which 
covers  the  whole  extent  of  the  demurrer  filed.6  It  is  doubtful 
whether  by  a  demurrer  ore  tenus  advantage  can  be  taken  of 
defects  in  form.7 

§  117.  Prayer  of  Judgment.  —  A  demurrer,  having  assigned  the 
cause  or  causes  of  its  interposition,  then  proceeds  to  demand 
judgment  of  the  court  whether  the  defendant  ought  to  be  com- 
pelled to  put  in  any  further  or  other  answer  to  the  bill,  or  to 
such  part  thereof  as  is  specified  as  the  subject  of  demurrer  ;  and 
concludes  with  a  prayer  that  the  defendant  be  dismissed,  or,  if 
to  a  part  only,  that  he  be  excused  from  answering  that  part, 
with  his  reasonable  costs  in  that  behalf  sustained.1  When  the 
demurrer  is  to  a  part  only  of  the  bill,  the  answer  or  plea  to  what 
remains  usually  follows  the  statement  of  the  causes  of  demurrer, 
and  the  submission  to  the  judgment  of  the  court  of  the  plain- 

J5  Wellesley  v.  Wellesley,  4  Myl.  &  Cr.         4  Durdant    v.  Redman,   1  Vern.   78 ; 

554  ;  Darnell's  Ch.  Pr.  (2d  Am.  ed.)  657.  Hook  v.  Dorman,  1  Sim.  &  S.  227 ;  Story's 

§  116.   i  Taylor  v.  Holmes,  14  Fed.  R.  Eq.  PI.  §  464;  Daniell's  Ch.  Pr.  (2d  Am. 

498;   Brinkerhoff   v.    Brown,    6    J.   Ch.  ed.)  668. 

(N.  Y.)  149;  Daniell's  Ch.  Pr.  (2d  Am.  5  Story's  Eq.  PI.  §  464;  Durdant  v. 

ed.)  657;  Langdell's  Eq.  PI.  §  95;  Story's  Redman,  1  Vern.  78;  Attorney-General 

Eq.  PI.  §  464;  Tourton  v.  Flower,  3  P.  v.  Brown,  1  Swanst.  288;  Hook  v.  Dor- 

Wms.  371.  man,  1  Sim.  &  S.  227. 

2  Taylor  v.  Holmes,  14  Fed.  R.  498,  6  Equitahle  Life  Assurance  Society  v. 
499;  Wright  v.  Dame,  1  Met.  (Mass.)  Patterson,  1  Fed.  R.  126;  Baker  v.  Mel- 
237  ;  Story's  Eq.  PI.  §  464;  Daniell's  Ch.  lish,  11  Ves.  70,  at  page  76 ;  Story's  Eq. 
Pr.  672.     But  see  Rule  34.  PI.  §  464.    But  see  Crouch  v.  Hickin,  1 

3  Langdell's  Eq.  PI.  §  95  ;  Story's  Eq.  Keen,  385. 

PI.  §   464 ;  Attorney-General  v.   Brown,  "'  Story's  Eq.  PI.  §  443. 

1  Swanst.  265,  at  page  268  ;  Mortimer  v.  §  117.  1  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 

Fraser,  2  Myl.  &  Cr.  173.  659. 


§  119]  MOTIONS   TO   TAKE    DEMURRERS    OFF   THE   FILE.  183 

tiffs  right  to  call  upon  the  defendant  to  make  further  or  other 
answer.2 

§  118.  Certificate  of  Counsel.  —  Every  demurrer  must  be  accom- 
panied by  a  certificate  of  counsel,  that  in  his  opinion  it  is  well 
founded  in  point  of  law,  and  supported  by  the  affidavit  of  the 
defendant;  that  it  is  not  interposed  for  delay.1  Otherwise,  it 
might  perhaps  be  disregarded;2  though  the  proper  remedy  for 
this,  as  for  any  irregularity  in  form  or  in  filing,  would  be  to  move 
to  take  the  demurrer  off  the  file.3  But  it  seems  that  the  demurrer 
may  be  overruled  for  such  an  omission.4  Whether  a  certificate 
of  counsel  is  required  when  the  defendant  appears  in  person,  has 
not  yet  been  decided  in  the  Federal  courts.5 

§  119.  Motions  to  take  Demurrers  off  the  File.  —  The  remedy  for 
an  irregularity  in  the  form  or  the  manner  of  filing  a  demurrer, 
for  example,  if  there  be  an  error  in  its  title,  or  it  be  filed  too  late, 
is  by  a  motion  to  take  it  off  the  file.1  When  an  order  to  that 
effect  is  granted,  the  cause  stands  in  the  same  position  as  if  no 
demurrer  had  been  filed  ;  and  the  defendant  is  at  liberty  to 
demur  anew,  or  to  plead  or  answer,  as  he  may  be  advised.2  The 
order  that  a  demurrer  be  taken  off  the  file  may  allow  the  de- 
fendant to  file  the  same  paper  with  the  proper  additions  and 
corrections.3  The  application  should  be  for  an  order  "  to  take  a 
certain  paper  purporting  to  be  a  demurrer"  off  the  file.4  A  de- 
murrer is  not  taken  off  the  file  by  the  mere  entry  of  an  order  to 
that  effect.  The  order  should  be  taken  to  the  clerk,  who  will 
withdraw  the  demurrer  by  annexing  the  order  to  it.5  By  setting 
the  demurrer  down  for  argument  or  taking  any  other  proceeding 
in  the  cause,  all  defects  of  form  except  the  omission  of  the  affida- 
vit and  certificate  of  counsel,6  and  any  irregularity  in  filing  it, 
would  probably  be  waived. 

2  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  G59.  193 ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  661- 

§  118.   l  Rule  31.  0U3. 

2  National  Bank  v.  Insurance  Com-  2  Cust  v.  Boode,  1  Sim.  &  S.  21 ;  Dan- 
pany,  104  U.  S.  54,  76.  iell's  Ch.  Pr.  663. 

3  See  §  119;  Daniell's  Ch.  Pr.  (2d  Am.  3  Bailey  Washing  Machine  Company  v. 
ed.)  661-663;   Ewing  v.  Blight,  3  Wall.  Young,  12  Blatchf.  199. 

Jr.  134.  4  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  732. 

4  See  U.  S.  R.  S.  §  747  ;  1  Hoffman's  5  Cust  v.  Boode,  1  Sim.  &  S.  21 ; 
Ch.  Pr.  97.  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  603. 

5  Secor  v.  Singleton,  9  Fed.  R.  809 ;  s.  c.  6  National  Bank  v.  Insurance  Com 
3  McCrary,  230.  pany,  104  U.  S.  54,  76;  Secor  t\  Single- 

§  119.   i  Ewing  v.  Blight,  3  Wall.  Jr.     ton,  9  Fed.  R.  809. 
134;   Curzon  v.  De  la  Zouch,  1  Swanst. 


184  DEMURRERS.  [CHAP.  VIII. 

§  120.  Setting  Demurrer  down  for  Argument.  —  If  the  plaintiff 
fail  to  set  down  any  plea  or  demurrer  for  argument  on  the  rule- 
day  when  the  same  is  filed,  or  on  the  next  succeeding  rule-day, 
he  is  deemed  to  admit  the  sufficiency  thereof,  and  his  bill  is 
dismissed  as  of  course,  unless  a  judge  of  the  court  allows  him 
further  time  for  the  purpose.1  The  defendant  filing  the  demur- 
rer is  the  only  party  that  can  have  the  bill  dismissed  upon  this 
account.2  The  former  English  practice  in  setting  a  demurrer 
down  for  argument  was  for  the  plaintiff  to  obtain  an  order 
ex  parte,  upon  petition  for  that  purpose ;  and  to  serve  the  same 
upon  the  defendant's  solicitor  at  least  two  days  before  the 
hearing.3  In  the  different  circuits  of  the  United  States  the 
matter  is  usually  regulated  by  local  rule  or  custom.4  It  has 
been  held,  that  a  demurrer  to  a  bill  seeking  an  injunction  must 
be  decided,  before  a  motion  for  an  injunction  noticed  after  the 
filing  of  the  demurrer  can  be  heard,5  and  before  action  is  taken 
upon  a  plea  subsequently  or  contemporaneously  filed;6  and 
that  while  a  demurrer  is  pending  undecided,  the  allegations 
of  the  bill  must  for  the  purposes  of  a  motion  be  deemed 
admitted.7 

§  121.  Argument  of  Demurrer. — When  a  demurrer  was  called 
on  for  hearing  and  the  defendant  failed  to  appear,  in  the  English 
practice  the  demurrer  was  struck  out  of  the  paper,  unless  the 
plaintiff  had  set  down  the  demurrer,  and  could  produce  an  affida- 
vit of  service  upon  the  defendant  or  his  solicitor  of  the  order  to 
set  it  down.  If  the  plaintiff  could  produce  such  an  affidavit,  the 
demurrer  was  not  necessarily  overruled;  but  he  had  to  be  heard 
in  support  of  the  bill,  the  affidavit  of  service  not  authorizing  the 
court,  in  the  absence  of  the  defendant,  to  overrule  the  demurrer, 
but  to  hear  the  plaintiff.1  When  the  defendant  appeared  and 
the  plaintiff  did  not,  the  demurrer  was  also  struck  out  of  the 
paper,  unless  the  defendant  could  produce  an  affidavit  of  service 
upon  himself  of  the  order  setting  down  the  demurrer;  or  unless, 
in  the  event  of  the  defendant  having  himself  set  down  the  de- 

§  120.   1  Rule  38.  e  Ketchum  v.  Driggs,  6  McLean,  13. 

2  Chicago  &  Alton  R.  R.  Co.  v.  Union        6  Campbell  v.  Mayor,  33  Fed.  R.  795. 
Rolling  Mill  Co.,  109  U.  S.  702,  717.  7  Bayerque  v.  Cohen,  M'Allister,  113. 

3  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  665,  §  121.  »  Penfold  v.  Ramsbottom,  1 
666.  Swanst.  552;   Daniell's  Ch.  Pr.  (2d  Am 

4  See  Gordon   v.    St.  Paul   Harvester  ed.)  666,  667. 
Works,  23  Fed.  R.  147. 


§  122.]  OVERRULING   A   DEMURRER.  185 

murrer,  he  could  produce  an  affidavit  of  service  upon  the  plaintiff 
or  his  solicitor.  On  the  production  of  such  an  affidavit  in  either 
case,  the  defendant  might  have  the  demurrer  allowed  with 
costs.2  Where  a  demurrer  had  been  struck  out  of  the  paper,  a 
fresh  order  had  to  be  obtained  for  setting  it  down,  which  might 
be  had  either  upon  petition  or  motion.3  The  usual  course  of 
proceeding,  when  the  demurrer  came  on  for  hearing,  and  all 
parties  appeared,  was  generally  for  the  junior  counsel  for  the 
party  setting  the  demurrer  down  for  argument  to  open  the  plead- 
ings, after  which  the  counsel  in  support  of  the  demurrer  were 
heard,  and  next  the  plaintiffs  counsel,  and  then  the  leading  coun- 
sel for  the  demurring  party  replied.4  The  practice  in  these 
respects  in  the  courts  of  the  United  States  is  very  loose ;  it  is 
sometimes  regulated  by  the  local  rule,  and  often  by  a  local  custom, 
after  the  analogy  of  the  State  practice. 

§  122.  Overruling  a  Demurrer.  —  If,  upon  the  hearing,  any  de- 
murrer is  overruled,  the  plaintiff  is  entitled  to  his  costs  in 
the  cause  up  to  that  period,  unless  the  court  is  satisfied  that  the 
defendant  has  good  ground,  in  point  of  law  or  fact,  to  interpose 
the  same,  and  it  was  not  interposed  vexatiously  or  for  delay.1 
And,  upon  the  overruling  of  any  demurrer,  the  defendant  is  as- 
signed to  answer  the  bill,  or  so  much  thereof  as  is  covered  by  the 
demurrer,  the  next  succeeding  rule-day,  or  at  such  other  period  as 
consistently  with  the  rights  of  the  defendant,  the  same  can,  in  the 
judgment  of  the  court,  be  reasonably  done  ;  in  default  whereof, 
the  bill  is  to  be  taken  against  him  pro  confesso,  and  the  matter 
thereof  proceeded  in  and  decreed  accordingly.2  If,  however,  the 
plaintiff  does  not  desire  an  answer,  terms  may  be  imposed  as  a 
condition  upon  the  filing  of  an  answer  by  the  defendant.3  When 
a  demurrer  both  to  the  whole  bill  and  to  a  part  thereof  is  sus- 
tained only  as  to  a  part,  the  proper  decree  is  to  dismiss  so  much  of 
the  bill  as  seeks  relief  in  reference  to  the  matters  adjudged  to  be 
bad,  overrule  the  demurrer  to  the  residue,  and  direct  the  defend- 
ant to  answer  thereto.4  When  several  defendants  have  joined  in 
the  demurrer,  it  may  be  sustained  as  to  one  of  them,  and  over- 

2  Jennings  v.  Pearce,  1  Ves.  Jr.  447.  2  Rule  34. 

8  Tolson  v.  Lord  Fitzwilliam,  4  Madtl.  8  Halderman   v.   Ilaldorman,    Ilcmpst. 

403.  407. 

4  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  666,  4  Powder   Co.   v.   Powder   Works,   98 

667.  U.  S.  126. 

§  122.  i  Rule  34. 


186  DEMURRERS.  [CHAP.  VIII. 

ruled  as  to  the  rest.5  "  The  court  cannot  let  a  demurrer  stand 
for  an  answer,  because  it  is  a  mute  thing."6  It  must  be  either 
sustained  or  overruled.  If,  therefore,  it  is  doubtful  whether  a 
demurrer  should  be  sustained  or  not,  the  court  will  overrule  it, 
and  allow  the  same  defense  to  be  taken  by  answer;7  or,  even  if 
it  be  not  taken  in  the  answer,  will  sustain  it  at  the  hearing.8  By 
special  leave,  such  a  defense  may  also  be  made  by  a  plea.9  When 
the  answer  by  supplying  omissions  in  the  bill  establishes  the 
complainant's  case,  a  decree  for  him  will  not  be  reversed  upon 
appeal,  for  an  error  in  overruling  a  demurrer.10  After  a  demurrer 
to  the  whole  bill  has  been  overruled,  a  second  demurrer  to  the 
same  extent  cannot  be  allowed ;  for  that  would  be  in  effect  to  re- 
hear the  case  on  the  first  demurrer  ;  as,  on  argument  of  a  demur- 
rer, any  cause  of  demurrer,  though  not  shown  in  the  demurrer 
as  filed,  may  be  alleged  at  the  bar,  and  if  good  will  support  the 
demurrer.11  A  demurrer,  however,  of  a  less  extensive  nature 
may  by  special  leave  of  the  court  be  subsequently  put  in  ; 12  and 
an  amendment  of  a  demurrer  confining  it  to  a  part  of  the  bill 
may  also  be  allowed.13 

§  123.  Sustaining  a  Demurrer.  —  If  upon  the  hearing  any  demur- 
rer be  allowed,  the  defendant  is  entitled  to  his  costs.1  But  the 
court  may,  in  its  discretion,  upon  motion  of  the  plaintiff,  allow 
him  to  amend  his  bill  upon  such  terms  as  it  shall  deem  reason- 
able.2 But  when  a  demurrer  ore  tenus  is  sustained,3  the  defend- 
ant receives  no  costs,  and  perhaps  may  be  ordered  to  pay  costs.4 
If  the  defect  in  the  bill  be  clearly  one  that  goes  to  the  whole 
equity  of  the  plaintiff's  case,  leave  to  amend  will  not  be  granted.5 

5  Mayor  of  London  v.  Levy,  8  Ves.  13  Glegg  v.  Legh,  4  Madd.  193,  207  ; 
403,  404  ;  Story's  Eq.  PI.  §  445.  Baker  v.  Mellish,  11  Ves.  70;  Atwill  v. 

6  Lord  Chancellor  Hard vvicke  in  Anon.,  Ferrett,  2  Blatehf.  39,  49. 
3  Atk.  530.  §  123.   i  Rule  34. 

7  Storms  v.  Kansas  Pacific  Ry.  Co.,  5  2  Rule  34. 

Dill.  486;   Bromley  v.   Town   of  Jeffer-  8  Taylor  v.  Holmes,  14  Fed.  R.  498; 

sonville,  3  McLean,  336.     See  Crawford  Brinkerhoff  v.  Brown,  6  J.  Ch.  (N.  Y.) 

v.  The  William  Penn,  3  Wash.  484.  149;  Langdell's  Eq.Pl.  §  95;  Story's  Eq. 

3  Johnasson  v.  Bonhote,  L.  R.  2  Ch.  D.  PI.  §  464;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 

298.  672. 

9  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  675;  4  Langdell's  Eq.  PI.  §  95;  Lord  Clar- 
Rowley  v.  Eccles,  1  S.  &  S.  512.  endon's  Orders,  May  22,  1661  ;  1  Sanders' 

10  Cavender  v.  Cavender,  114  U.  S.  464.     Orders,  298. 

See  also  West  v.  Randall,  2  Mason,  181.  5  Langdell's   Eq.   PI.   §  96  ;    Tyler  v. 

11  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  674.  Bell,  2  Myl.  &  Cr.  89 ;  Lowe  v.  Farlie,  2 

12  Thorpe  v.  Macauley,  5  Madd.  218,  Madd.  101 ;  Walker  v.  Powers,  104  U.  S. 
231.  245. 


§  123.]  SUSTAINING   A   DEMURRER.  187 

According  to  Lord  Cottenham,  "  it  is  not  usual,  upon  allowing  a 
o-eneral  demurrer,  to  give  leave  to  amend ;  but  it  may  be  done. 
It  is  in  the  discretion  of  the  court  so  to  do."  6  And  although 
courts  are  now  very  liberal  in  allowing  amendments,  leave  to 
amend  may  be  refused  when  the  case  of  the  defendant  is  a  hard 
one,  and  he  is  free  from  wrong-doing,  while  the  plaintiff  has  had 
an  opportunity  to  plead  the  new  matter  when  his  bill  was  first 
drawn.7  Leave  to  amend  is  usually  granted  ;  and  almost  invari- 
ably when  the  defect  in  the  bill  consists  in  the  misjoinder  of 
parties,8  or  the  omission  of  those  who  can  be  served  without 
ousting  the  court  of  jurisdiction.9 

6  Wellesley  v.  Wellesley,  4  Myl.  &  Or.  Tryon    v.    Westminster      Improvement 

554,  558.  Comm'rs,  6  Jurist  n.  s.  1324. 

i  Dowell  v.  Applegate,  8  Fed.  R.  698;  9  M'Elwain  v.  Willis,  3  Paige  (N.  Y.), 

s.  c.  7  Sawyer,  232.  505.     See  Walker  v.  Powers,   104  U.  S. 

8  Aylwin  v.  Bray,  2  Y.  &  J.  518,  note  ;  245,  252. 


188  PLEAS.  [CHAP.  IX. 


CHAPTER  IX. 

PLEAS. 

§  124.  Definition  and  Classification  of  Pleas.  —  A  plea  is  a 
pleading  which  sets  up  some  reason  not  apparent  upon  the  face 
of  the  bill  why  the  defendant  should  not  be  obliged  to  answer 
the  whole  or  a  part  thereof.  Lord  Redesdale  defines  a  plea  as 
"  a  special  answer  to  a  bill,  differing  in  this  from  an  answer  in 
the  common  form,  as  it  demanded  the  judgment  of  the  court,  in 
the  first  instance,  whether  the  special  matter  urged  by  it  did  not 
debar  the  plaintiff  from  his  title  to  that  answer  which  the  bill 
required."  1  A  plea  may  be  to  the  whole  or  to  a  part  of  the  bill.2 
Usually  but  a  single  ground  of  defense  can  be  presented  by  a 
plea,  which,  though  it  may  state  more  than  one  fact,  must  bring 
the  matters  in  issue  to  a  single  point.3  Otherwise,  it  is  open  to 
the  charge  of  duplicity  and  multifariousness,  and  will  be  over- 
ruled.4 But  if  a  bill  contain  different  prayers  for  relief  based 
upon  different  grounds,  the  defendant  may  file  a  plea  to  each 
part  of  the  relief.5  And  in  other  cases,  where  great  incon- 
venience can  thus  be  saved,  the  court  may  upon  motion,  after 
notice  to  the  complainant's  solicitor,  give  special  leave  to  file  a 
double  plea,6  or  rather,  according  to  Professor  Langdell,7  two 
separate  pleas,  each  containing  a  single  defense.  Thus,  in  Eng- 
land, a  defendant  to  a  bill  for  an  injunction  against  the  infringe- 
ment of  a  patent  and  for  an  account  was  allowed  to  file  a  double 

§  124.  1  Roche  v.  Morgell,  2  Sch.   &  London  v.  Corporation   of  Liverpool,  3 

Lef.  721,  725.  Anst.  738;  Watkins  v.  Stone,  2  Simons, 

2  Rule  32.  49 ;  Saltus  v.  Tobias,  7  J.  Ch.  (N.  Y.)  214  ; 

3  Whitbread  v.  Brockhurst,  1  Brown,  Giant  Powder  Co.  v.  Safety  Nitro  Powder 
Ch.  C.  404,  416,  note  9 ;  s.  c.  2  Ves.  &  Bea.  Co.,  19  Fed.  R.  509 ;  M'Closkey  v.  Barr,  38 
154,  note;  Watkins  v.  Stone,  2  Simons,  Fed.  R.  165;  Story's  Eq.  PI.  §§  653-655. 
49 ;  Rhode  Island  v.  Massachusetts,  14  But  see  Reissner  v.  Anness,  12  Off.  Gaz. 
Pet.  210,  259  ;  Story's  Eq.  PI.  §  654.  842  ;  s.  c.  3  Bann.  &  A.  Pat.  Cas.  148. 

4  Rhode  Island  v.  Massachusetts,  14  5  Emmott  v.  Mitchell,  14  Simons,  432. 
Pet.  210,  259 ;  Gaines  v.  Mausseaux,  1  6  Gibson  v.  Whitehead,  4  Madd.  241 ; 
Woods,  118 ;    Whitbread  v.  Brockhurst,  Kay  v.  Marshall,  1  Keen,  190. 

1  Brown,  Ch.  C.  404,  416,  note  9  ;  s.  c.         7  Langdell's  Eq.  PI.  §  98. 

2  Ves.  &  Bea.  154,  note ;  Corporation  of 


§  124.]  DEFINITION   AND   CLASSIFICATION    OF   PLEAS.  189 

plea,  "namely,  first,  that  the  invention  was  not  useful,  and 
secondly,  that  it  was  not  new."8  It  has  been  held  that  the 
question  whether  a  patent  has  been  infringed  cannot  be  raised 
by  a  plea.9  A  plea  must  not  contain  inconsistent  allegations,10 
as  "a  plea  of  the  Statute  of  Limitations  and  of  liability  never 
incurred."  u  Nor,  it  has  been  said,  can  a  plea  properly  raise  by 
averment  an  issue  not  "  raised  by  the  bill."  12  But,  if  the  plea 
be  otherwise  good,  immaterial  allegations  will  not  vitiate  it.13 
Matters  that  have  occurred  since  the  filing  of  the  bill  may  be 
set  up  by  plea  provided  the  time  for  filing  the  plea  has  not 
elapsed.14  Otherwise,  such  matters  can  only  be  pleaded  by  a 
supplemental  answer  or  cross-bill.15  A  plea  should  state  facts, 
not  arguments  and  conclusions  of  law,  which  will  be  disregarded.16 
Thus,  it  has  been  held  that  pleas  which  state  that  defendant  "  is 
the  sole  owner  in  fee  simple  of  the  entire  title  of"  the  land  which  is 
the  subject  of  the  suit ;  "  that,  at  the  time  of  the  bringing  of  this 
suit  and  long  prior  thereto,  this  defendant  was  and  still  is  in  the 
open,  notorious,  continuous,  and  exclusive  possession  of  the  said 
premises  as  the  sole  owner  thereof,  and  claiming  and  holding  ad- 
versely to  the  complainants  and  all  the  world  ; "  and  "  that  the 
said  complainants  were,  at  the  time  of  bringing  this  suit  and 
long  prior  thereto,  ousted  and  disseissed  and  out  of  possession  of 
said  premises,"  are  bad.  Pleas  are  either  pure,  negative,  or  anom- 
alous. A  pure  plea  sets  up  new  matter  as  a  defense  which  is  not 
apparent  upon  the  face  of  the  bill.17  A  negative  plea,  which  is 
sometimes  also  termed  an  anomalous  plea,  merely  denies  certain 
allegations  contained  in  the  bill.18  An  anomalous  plea  sets  up  a 
fact  in  avoidance  of  the  bill,  but  one  which  the  bill  has  antici- 

8  Kay  v.  Marshall,  1  Keen,  190,  192.  M  Earl  of  Leicester  v.  Perry,  1  Brown, 
But  see  Reissner  v.  Anness,  12  Off.  Gaz.  Ch.  C.  305 ;  Turner  v.  Robinson,  1  Sim.  & 
842  ;  s.  c.  3  Bann.  &  A.  Pat.  Cas.  148.  S.  3. 

9  Korn  v.  Wiebusch,  33  Fed.  R.  50;  15  Miller  v.  Fenton,  11  Paige  (N.  Y.), 
Hubbell  i>.  De  Land,  14  Fed.  R.  471, 474.  18  ;  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  607. 

"»  Emmott  v.  Mitchell,  14  Simons,  432;  16  Beames  on  Pleas,  22,  23  ;  Jerrard  v. 

Story's  Eq.  PI.  §§  656,  657.  Saunders,  2  Ves.  Jr.  187  ;  National  Bank 

11  Emmott  v.  Mitchell,  14  Simons,  432,  v.  Insurance  Co.,  104  U.  S.  54  ;  Wood  v. 
436.  Mann,    1    Sumner,    500 ;    McCloskey   v. 

12  Emmott  v.  Mitchell,  14  Simons,  432,  Barr,  38  Fed.  R.  165  ;  Emma  Silver  Min- 
436.  But  see  Rhode  Island  v.  Massachu-  ing  Co.  v.  Emma  Silver  Mining  Co.  of 
setts,  14  Pet  210,  270.  New  York,  1  Fed.  R.  39. 

"  Rhode  Island  v.  Massachusetts.  14        17  M'Closkey  v.  Barr,  38  Fed.  R.  165. 
Pet.  210,  270 ;  Claridge  v.  Iioare,  14  Ves.        18  Story's  Eq.  PI.  §  651. 
59. 


190  PLEAS.  [CHAP.  IX. 

pated  and  without  confessing  replied  to.19  Xow  that  the  benefits 
of  discovery  can  be  obtained  at  common  law,  negative  and 
anomalous  pleas  are  rarely  used  ;  and  the  learning  and  subtlety 
which  have  been  displayed  in  discussing  their  characteristics  are 
of  little  service,  except  as  a  means  of  mental  discipline  or  for  the 
gratification  of  an  antiquarian  taste.  Those  interested  in  study- 
ing their  history  and  refinements  are  referred  to  the  works  of 
Beames  on  Pleas,  Wigram  on  Discovery,  and  Langdell  on  Equity 
Pleading,  where  they  will  find  the  subject  discussed  at  length, 
with  full  references  to  the  cases.  Pleas  are  either  to  the  relief 
or  to  the  discovery  ;  and  pleas  to  the  relief  are  either  pleas  in 
abatement  or  pleas  in  bar. 

§  125.  Pleas  in  Abatement  in  General.  —  The  books  which 
recognize  pleas  in  abatement  include  among  them  pleas  to  the 
jurisdiction,  pleas  to  the  person,  and  pleas  to  the  bill.1  Matters 
in  abatement  can,  in  general,  only  be  set  up  by  plea  or  demurrer  ; 
and  a  defendant,  by  answering  or  pleading  in  bar,  waives  any 
such  objection.2  But  the  act  of  March  3,  1875,  provides  "  that 
if  in  any  suit  commenced  in  a  circuit  court,  or  removed  from  a 
State  court  to  a  circuit  court  of  the  United  States,  it  shall  ap- 
pear to  the  satisfaction  of  said  circuit  court,  at  any  time  after 
such  suit  has  been  brought  or  removed  thereto,  that  such  suit 
does  not  really  and  substantially  involve  a  dispute  or  controversy 
properly  within  the  jurisdiction  of  said  circuit  court,  or  that  the 
parties  to  said  suit  have  been  improperly  or  collusively  made  or 
joined,  either  as  plaintiffs  or  defendants,  for  the  purpose  of  cre- 
ating a  case  cognizable  or  removable  under  this  act,  the  said 
circuit  court  shall  proceed  no  further  therein,  but  shall  dismiss 
the  suit  or  remand  it  to  the  court  from  which  it  was  removed  as 
justice  may  require,  and  shall  make  such  order  as  to  costs  as 
shall  be  just."  3     The  objection  that  there  is  no  jurisdiction  in 

19  Langdell's  Eq.   PL   §   102 ;   Story's  Rubber  Co.  v.  Goodyear,  9  Wall.  788, 

Eq.  PL  §  651 ;  M'Donald  v.  Salem  Capital  792 ;    Wood   v.   Mann,    1    Sumner,   506 ; 

Flour  Mills  Co.,  31  Fed.  R.  577;  M'Closkey  Dodge  v.  Perkins,   4   Mason,  435;    Kit- 

v.  Barr,  38  Fed.  R.  165.    But  see  Milligan  tredge  v.  Claremont  Bank,  3  Story,  590 ; 

v.  Milledge,  3  Cranch,  220.  Doggett  v.  Emerson,  1  Woodb.  &  M.  196  ; 

§  125.  i  See  Beames  on  Pleas,  ch.  2  ;  Blackburn  v.  Selma,  M.  &  M.  R.  R.  Co.,  2 

Story's   Eq.   PL   §§    705-708 ;   Rule   39 ;  Flippin,  525. 

Memphis  City  v.  Dean,  8  Wall.  64.  3  Act  of  March  3,  1875,  §  5;  U.  S.  R. 

2  Beames  on  Pleas  (1st  Am.  ed.)  63-  S.   1   Supp.  175;  18  St.  at  L.   470;  re- 

64;    Story's   Eq.    PL    §   708;    Rule   39;  enacted  in  Act  of  March  3,  1887,  24  St. 

Livingston    v.   Story,  11   Pet.  351,  393;  at  L.  ch.  373. 
Wickliffe  v.  Owings,   17   How.   47,  52; 


§  127.]  PLEAS  TO  THE  PERSON.  191 

equity  because  the  complainant  has  an  adequate  remedy  at  law- 
may  be  taken  by  demurrer,  plea,  or  answer.4  Otherwise,  the 
defendant  waives  the  right  to  make  it,5  although  the  court  may 
for  its  own  protection  dismiss  a  bill  for  this  reason  at  the  final 
hearing  when  the  pleadings  are  silent  upon  the  subject.6  The 
reference  of  the  matter  in  dispute  to  an  arbitrator,  under  an 
agreement  that  his  award  shall  be  made  the  basis  of  a  decree,  is 
a  waiver  of  such  an  objection.7 

§  126.  Pleas  to  the  Jurisdiction.  —  Pleas  to  the  jurisdiction  are  : 
(1)  That  the  subject  of  the  suit  is  not  within  the  jurisdiction  of 
a  court  of  equity  ; 1  (2)  that  some  other  court  of  equit}r  has  the 
proper  jurisdiction;2  (3)  that  the  defendant  has  not  been 
properly  served  with  process.3 

§  127.  Pleas  to  the  Person.  —  Pleas  to  the  person  are  :  (1) 
That  the  plaintiff  has  not  the  legal  capacity  to  sue  either  at  all 
if  an  alien  enemy,1  or  alone  if  an  infant,2  or  without  leave  from 
the  court  as  a  receiver.3  (2)  That  the  plaintiff  is  not  the  person 
whom  he  pretends  to  be,  or  does  not  sustain  the  character  which 
he  assumes;  as,  for  example,  that  he  is  not  executor,4  or  not  as- 
signee,5 or  not  a  corporation,6  when  suing  as  such  ;  or  that  the 
suit  is  brought  in  the  name  of  a  fictitious  person;7  or  that  it  is 
brought  in  the  name  of  a  person  who  sues  for  the  benefit  of 
another,  through  collusion  or  champerty  ; 8  or,  it  seems,  in  a  stock- 
holder's suit  founded  upon  a  right  which  may  properly  be  as- 
serted by  the  corporation,  that  the  corporation  has  not  refused  to 
sue.9  It  has  been  held  that  the  objection  that  the  plaintiff  is  a 
lunatic  and  cannot  sue  without  a  next  friend  cannot  be  taken  by 

*  Reynesi-.D umont,130 United  States,  2  Story's    Eq.   PL    §   725.      But    see 

354,  395  ;  Wylie  v.  Coxe,  15  Howard,  415  ;  Dudgeon  v.  Watson,  23  Fed.  R.  161. 
Kilbourn  v.  Sunderland,  130  U.  S.  505.  3  See  Newman  v.  Moody,  19  Fed.  R. 

6  Keynes  v.  Dumont,  130  U.  S.  354 ;  858. 
Wylie  v.  Coxe,  15  How.  415.  *  See  Rubber  Co.  v.  Goodyear,  0  Wall. 

6  Parker  v  Winnipiseogee  Lake  C.  &  788,  792;  Ord  '•.  Kuddleston,  2  Dickens, 
W.    Co.,   2   Black,  545,    550;    Lewis    v.  510;  Story's  Eq.  PI.  §  727. 

Cocks,  23  Wall.  40G ;  Oelrichs  v.  Spain,  5  Nicholas  v.  Murray,  5  Saw.  320. 

15  Wall.  211.  6  Dental  Vulcanite  Co.  v.  Wetherbee, 

7  Strong  v.  Willey,  104  U.  S.  512.  2  Cliff.  555;  Blactiburn  v.  Selma,  M.  & 
§  120.  i  Story's  Eq.  PI.  §§  710-713.  M.  R.  R.  Co.,  2  Li.ppin,  525. 

2  Story's  Eq.  PI.  §§  714-716.  7  Chapman  v.  School  District  No.  1, 

8  Larned  v.   Griffin,  12  Fed.  R.  590;     Drady,  108,  116. 

Williams  v.  Empire  Transportation  Co.,  8  Dinsmore  v.  Central  R.   R.   Co.,   19 

1  X.  J.  L.  J.  315.  Fed.   R.  153.      But   sec   Sperry   v.  Erie 

§  127.  i  Albrech  v.  Sussman,  2  V.  &  B.  Ry.  Co.,  6  Blatchf.  425. 

323;  Story's  Eq.  PI.  §724;  Mumford  v.  °  Newby  c.  Oregon  Central  Ry.  Co, 

Mumford,  1  Gall.  36G.  1  Saw.  G3,  67. 


192  PLEAS.  [CHAP.  IX. 

plea,  and  that  the  proper  course  for  the  defendant  is  to  move 
either  to  strike  the  bill  off  the  file  on  account  of  the  complain- 
ant's mental  incapacity,  or  for  a  stay  of  proceedings  until  a 
committee  or  next  friend  is  appointed.10  (3)  That  the  defendant 
cannot  be  sued  except  upon  the  happening  of  some  event  which 
has  not  occurred,  as  that  he  is  a  receiver,  and  no  leave  to  sue 
him  has  been  obtained  from  the  court  by  which  he  was  ap- 
pointed.11 (4)  That  the  defendant  is  not  the  person  he  is 
alleged  to  be,  or  does  not  sustain  the  character  which  he  is 
alleged  to  bear ; 12  or  that  the  person  named  as  a  defendant  is 
not  a  corporation  when  sued  as  such,  —  in  which  case  the  person 
served  with  process  on  its  behalf  may  file  the  plea  in  his  own 
name,13  or  was  not  incorporated  under  the  laws  of  the  State 
which  is  named  in  the  bill  as  its  creator  ;14  or  that  the  defendant 
has  become  a  bankrupt  or  insolvent,  and  his  interest  in  the  sub- 
ject-matter has  passed  to  his  assignee.15 

§  128.  Pleas  to  the  Bill.  —  Pleas  to  the  bill  are :  (1)  That 
there  is  another  suit  depending  in  a  domestic  court  of  equity 
for  the  same  matter.     (2)  That  there  is  a  want  of  proper  parties. 

(3)  That  the  bill  will  cause  an  improper  multiplicity  of  suits. 

(4)  Multifariousness.1  Of  these  the  first  two  are  the  only  ones 
of  much  practical  importance.  It  is  doubtful  whether  either  of 
the  last  two  has  ever  been  successfully  maintained.2  Judge  Story 
thus  speaks  of  them  :  "  Thirdly,  the  plea  of  multiplicity  of  suits. 
This  objection  also  may  be  taken  by  way  of  plea,  for  it  is  against 
the  whole  policy  of  courts  of  equity  to  encourage  multiplicity 
of  suits.  Indeed,  this  constitutes  one  main  ground  of  the  ob- 
jection of  the  want  of  sufficient  parties,  since  its  tendency  is  to 
multiply  litigation.  Fourthly,  the  plea  of  multifariousness,  or  of 
joining  and  confounding  distinct  matters  in  one  bill.  Generally 
this  objection  is  apparent  on  the  face  of  the  bill,  and  then  it 
could  be  taken  by  way  of  demurrer.     But,  in  case  the  bill  is  so 

i°  Dudgeon  v.  Watson,  23  Fed.  R.  161.  14  Blackburn  v.  Selma,  M.  &  M.  R.  R. 

11  Barton  v.  Barbour,  104  U.  S.  126;  Co.,  2  Flippin,  525. 

Jerome  v.  MeCarter,  94  U.  S.  734,  737  ;  15  Kittredge    v.    Claremont    Bank,    3 

In  re  Young,  7  Fed.  R.  855.    But  see  24  Story,  590 ;  Story's  Eq.  PI.  §  732.     See 

St.  at  L.  ch.  373,  §  3.  also  Doggett  v.  Emerson,  1  Woodb.  &  M. 

i2  Story's  Eq.  PI.  §§  732-734.  196. 

w  Kelley  v.  Mississippi  Central  R.  R.  §  128.  •  Story's  Eq.  PI.  §§  735-748. 

Co.,  1  Fed.  R.  564;   s.  c.  2  Flippin,  581.  2  Benson  v.  Hadfield,  4  Hare,  32,  39; 

See  also  Williams  v.  Empire  Transporta-  M'Closkey  v.  Barr,  38  Fed.  R.  165. 
tion  Co.,  1  N.  J.  L.  J.  315. 


§  129.]       PLEAS  OF  PENDENCY  OF  ANOTHER  SUIT.  193 

artfully  framed  that  from  that  or  from  some  other  cause  the 
objection  does  not  appear  on  the  face  of  the  bill,  the  defendant 
may  take  advantage  thereof  by  setting  forth  the  special  matter 
by  a  plea."  3  The  following  plea  was  held  bad  and  overruled : 
where  the  bill  was  filed  to  restrain  the  infringement  of  five 
patents,  and  stated  that  the  defendant  made  and  sold  for  use 
"  soda-water  fountains,  each  made  according  to,  and  employing 
and  containing,  the  inventions  described  and  claimed  in  each 
of  the  above-named  letters-patent  and  reissued  letters-patent." 
The  plea  set  up  as  a  defense  that  all  of  the  letters-patent  de- 
scribed in  the  bill  were,  as  the  bill  showed,  for  separate  and 
distinct  inventions,  "which  several  alleged  inventions  are  not, 
in  point  of  fact,  connected  together  in  use  or  operation,  and  are 
not,  in  point  of  fact,  conjointly  embodied  in  any  of  the  soda- 
water  and  other  fountains  manufactured,  used,  or  sold,  by  this 
defendant ;  so  that  the  said  plaintiff,  by  his  single  bill  of  com- 
plaint aforesaid,  seeks  to  compel  this  defendant  to  unite  five 
separate  and  distinct  defences  depending  upon  distinct  and  dif- 
ferent proofs,  so  as  to  complicate  the  defence  and  embarrass  this 
defendant  in  his  answer  to  the  said  complaint ;  and  that  it  is  not 
true,  as  alleged  in  said  bill,  that  the  said  defendant  has  made, 
constructed,  used,  and  vended  to  others  to  be  used,  soda-water 
and  other  fountains,  each  made  according  to,  and  employing  and 
containing  the  inventions  described  and  claimed  in  each  of  the 
above-named  letters-patent  and  reissued  letters-patent."  4 

§  129.  Pleas  of  Pendency  of  another  Suit.  — A  plea  that  another 
suit  in  equity  is  pending  for  the  same  cause  in  the  same  court  is, 
if  true,  a  sufficient  defense  to  a  bill.1  The  pendency  of  an  action 
at  law  for  the  same  matter  is  not,  however,  in  itself  a  defense.2 
For  the  very  fact  that  relief  cannot  be  had  at  law  is  the  usual 
ground  for  resorting  to  equity.  If,  however,  there  appears  to  be 
no  sufficient  reason  for  the  maintenance  of  both,  the  court  at 
equity  may,  after  the  defendant  has  answered,  put  the  plaintiff 
to  his  election,  whether  he  will  proceed  at  law  or  in  equity  ;  and 

3  Story's  Eq.  PI.  §§  746,  749.     See  also  Ch.  Ca.  241 ;  Tarleton  v.  Barnes,  2  Keen, 

Benson  v.  Hadfield,  4  Hare,  32.  632,   635 ;    Insurance   Co.   v.   Brune,   96 

*  Matthews  v.  Lalance  &  G.  Manuf.  U.  S.  588,  592,  593.     See  also   Memphis 

Co.,  2  Fed.  R.  232.  City  v.  Dean,  8  Wall.  64. 

§129     >   Mitford's    PI.    ch.    2,    §    2,  2  Graham  v.  Meyer,  4  Blatchf.   129; 

part  2  ;  Story's  Eq.   PI.  §  736  ;  Urlin  v.  Thorne  v.  Towanda  Tanning  Co.,  15  Fed. 

Hudson,  1  Vern.  332  ;  Foster  v.  Vassall,  R.  289,  292. 
3   Atk    587,  590;  Crofts   v.  Wortley,  1 

13 


194  PLEAS.  [CHAP.  IX. 

if  he  elects  the  latter,  then  his  proceeding  at  law  will  be  en- 
joined ;  if  the  former,  his  bill  will  be  dismissed.3  The  pendency 
of  another  suit  in  a  court  of  another  of  the  United  States,  or  of  a 
foreign  country,  is  not  a  bar  to  a  suit  for  the  same  relief  in  a  Cir- 
cuit Court  of  the  United  States.4  Nor,  it  seems,  although  there 
the  authorities  are  conflicting,5  is  the  pendency  of  a  similar  suit 
in  a  court  held  within  the  same  State  where  the  Federal  court  is 
held.6  The  effect  of  the  pendency  of  another  suit  for  the  same 
cause  in  another  court  of  the  United  States  has  never  been  ex- 
pressly decided  ; 7  but  there  seems  to  be  no  difference  in  prin- 
ciple between  such  a  suit  and  one  in  a  court  of  another  State, 
except  that  proceedings  in  such  a  case  in  a  Federal  court  could 
be  enjoined  by  a  Federal  judge.8  A  plea  that  another  suit  is 
pending,  in  which  the  complainant  might  obtain  by  cross-bill  the 
relief  now  sought  by  him,  is  bad.9  A  plea  of  lis  pendens  should 
set  forth  the  commencement  of  the  former  suit,  its  general  nature, 
character,  and  objects,  the  relief  prayed,  and  how  far  it  has  pro- 
gressed ; 10  it  should  then  aver  specifically  that  the  second  suit  is 
for  the  same  subject-matter11  as  the  first,  and  seeks  the  same,  or 
similar,  relief; 12  and  further,  that  the  former  suit  is  still  depend- 
ing.13 It  must  show  that  the  defendant  was  served  or  has  ap- 
peared in  the  former  suit.14    "  For  it  is  no  suit  depending  till  the 

3  Story's    Eq.    PI.    §    742 ;    Beames'  8  See  Massachusetts  Mutual  Life  Ins. 

Orders   in  Chancery,  11,  12  ;    Mitford's  Co  v.  Chicago  &  A.  R.  Co.,  13  Fed.  R.  857; 

Pleadings,  ch.   2,  §  2,  part  2  ;  Royle  v.  Beauchamp  v.  Marquis  of  Huntley,  Ja- 

Wynne,  1  Craig  &  Ph.  252  ;  Thorne  v.  cobs,  546 ;  Erie  Ry.  Co.  v.  Ramsey,  45 

To'wanda  Tanning  Co.,  15  Fed.  R.  289,  N.  Y.  637. 

292.  9  Washburn   &  Moen  Manuf.   Co.  v. 

*  Insurance   Co.  v.  Brune,  96   U.   S.  Scutt,  22  Fed.  R.  710. 

588,   592,   593;    Stanton  v.  Embrey,  93  10  Crescent    City  Live    Stock   Co.   v. 

U.  S.  548  ;  Lord  Dillon  v.  Alvares,  4  Ves.  Butchers'  Union  Live  Stock  Co.,  12  Fed. 

357.     See  Story'   Eq.  PI.  §  747.  R.  225 ;  Foster  v.  Vassall,  3  Atk.  589, 

5  See  Radford  v.  Folsom,  14  Fed.  R.  590 ;  Story's  Eq.  PI.  §  737. 

97 ;  Brooks  v.  Mills  County,  4  Dill.  524.  u  Devie  v.  Lord  Brownlow,  2  Dickens, 

6  Latham  v.  Chafee,  7   Fed.  R.  520 ;    611 ;  Mitford's  Pleadings,  ch.  2,  §  2,  part 
"White  v.  Whitman,  1  Curt.  494 ;  Sharon     2  ;  Story's  Eq.  PI.  §  737. 

v.  Hill,  22  Fed.  R.  28 ;  Washburn  &  Moen  12  Behrens  v.  Sieveking,  2  Myl.  &  Cr. 

Manuf.  Co.  v.  Scutt,  22  Fed.  R.  710  ;  Lor-  602  ;  Wheeler  v.  McCormick,  8  Blatchf. 

ing   ».  Marsh,  2  Cliff.  322  ;    Gordon   v.  267  ;  Jenkins  v.  Eldredge,  3  Story,  183 ; 

Gilfoil,  99  U.  S.  168,  178 ;  Dwight  v.  Cen-  Story's  Eq.  PI.  §  737. 

tral  Vermont  R.  R.  Co.,  9  Fed.  R.  785 ;  w  Story's  Eq.  PL  §  737.     See  Urlin  v. 

Crescent  City  Live  Stock  Co.  v.  Butchers'  Hudson,  1  Vern.  332  ;  Mitford's  Plead- 

Union  Live  Stock  Co.,  12  Fed.  R.  225.  ings,  ch.  2,  §  2,  part  2. 

7  See     Wheeler    v.     McCormick,     8  14  Moor  v.  Welsh  Copper  Co.,  1   Eq. 
Blatchf.  267 ;  Steiger  v.  Heidelberger,  4  Cas.  Abr.  39,  pi.  14. 

Fed.    R.    455;    s.   c.    18    Blatchf.  426; 
Brooks  v.  Mills  County,  4  Dill.  524,  527. 


§  129.]       PLEAS  OF  PENDENCY  OF  ANOTHER  SUIT.  195 

parties  have  appeared  or  been  served  to  appear,  but  only  a  piece 
of  parchment  thrown  into  the  office,  which  may  lie  there  forever, 
and  never  come  to  a  suit."  15  "  It  is  not  necessary  to  the  suffi- 
ciency of  the  plea  that  the  former  suit  should  be  precisely  between 
the  same  parties  as  the  latter.  For  if  a  man  institutes  a  suit, 
and  afterwards  sells  part  of  the  property  in  question  to  another, 
who  files  an  original  bill  touching  the  part  so  purchased  by  him, 
a  plea  of  the  former  suit  depending  touching  the  whole  property 
will  hold.16  So  where  one  part-owner  of  a  ship  filed  a  bill  against 
the  husband  for  an  account,  and  afterwards  the  same  part-owner 
and  the  rest  of  the  owners  filed  a  bill  for  the  same  purpose,  the 
pendency  of  the  first  suit  was  held  a  good  plea  to  the  last ;  n  for 
though  the  first  bill  was  insufficient  for  want  of  parties,  yet  by 
the  second  bill  the  defendant  was  doubly  vexed  for  the  same 
cause.  The  course  which  the  court  has  taken  in  such  case  has 
been  to  dismiss  the  first  bill,  and  to  direct  the  defendant  in  the 
second  cause  to  answer  upon  being  paid  the  costs  of  the  plea 
allowed."  18  Where  a  former  suit  had  been  brought  for  a  part, 
but  not  the  whole  of  the  relief  sought  in  the  case  at  bar,  the 
court  held  its  pendency  no  defence,  but  said  that  proceedings  in 
it  might  be  stayed  until  the  determination  of  the  second  suit.19 
"  Where  a  second  bill  is  brought  by  the  same  person  for  the  same 
purpose,  but  in  a  different  right,  as  where  the  executor  of  an 
administrator  brought  a  bill  conceiving  himself  to  be  the  personal 
representative  of  the  intestate,  and  afterwards  procured  adminis- 
tration de  bonis  non,  and  brought  another  bill,  the  pendency  of 
the  former  bill  is  not  a  good  plea.20  The  reason  of  this  determi- 
nation seems  to  have  been,  that,  the  first  bill  being  wholly  irregu- 
lar, the  plaintiff  could  have  no  benefit  from  it,  and  it  might  have 
been  dismissed  upon  demurrer.  Where  a  decree  is  made  upon  a 
bill  brought  by  a  creditor  on  behalf  of  himself  and  all  other  cred- 
itors of  the  same  person,  and  another  creditor  comes  in  before 
the  master  to  take  the  benefit  of  the  decree,  and  proves  his  debt, 
and  then  files  a  bill  on  behalf  of  himself  and  the  other  creditors, 

]5  Moor  v.  Welsh  Copper  Co.,  1  Eq.  2,  citing  Crofts  v.  Wortley,  1   Ch.  Cas. 

Cas.  Abr.  39.  241. 

10  Moor  v.  Welsh  Copper  Co.,  1  Eq.         19  Massachusetts  Mutual  Life  Ins.  Co. 

Cas.  Abr.  39.  v.  Chicago  &  A.  R.  Co.,  13  Fed.  R.  857. 

17  Durand  v.  Hutchinson,  Mich.  1771,        20  Iluggins   v.   York   Building   Co.,   2 

in  Chan.  Atk.  44. 

i3  Mitford's  Pleadings,  ch.  2,  §  2,  part 


196  PLEAS.  [CHAP.  IX. 

the  defendants  may  plead  the  pendency  of  the  former  suit ;  for  a 
man  coming  in  under  a  decree  is  quasi  a  party."  21  When,  after 
a  bill  had  been  filed  to  restrain  the  infringement  of  a  patent  and  to 
obtain  an  account  of  profits,  the  defendant  continues  his  infringe- 
ments, the  pendency  of  the  first  is  no  objection  to  a  second  bill 
seeking  an  injunction,  and  an  account  founded  upon  the  subse- 
quent infringements.22  According  to  Lord  Redesdale,  "  as  the 
pendency  of  the  former  suit,  unless  admitted  by  the  plaintiff,  is 
made  the  immediate  subject  of  inquiry  by  one  of  the  masters,  a 
plea  of  this  kind  is  not  put  in  upon  oath."  23 

§  130.  Plea  of  Want  of  Parties.  —  The  plea  of  want  of  parties 
is  sometimes  included  among  pleas  in  bar.1  The  same  defense 
may  be  made  by  answer ; 2  and  in  a  recent  case  the  court  refused 
to  allow  it  to  be  set  up  by  plea  upon  the  ground  that  the  same 
defense  can  be  considered  with  more  convenience  and  expedition 
when  pleaded  in  an  answer.3  Such  a  plea  must  state  the  names, 
if  known,  of  all  the  persons  for  whose  omission  the  defendant 
claims  that  the  bill  is  defective.4  It  should  also  state  that  they 
are  living,  and,  unless  they  are  in  every  aspect  of  the  bill  indis- 
pensable parties  to  it,  that  they  are  within  the  jurisdiction  of  the 
court.5  After  a  plea  for  want  of  parties  has  been  sustained,  and 
the  bill  amended  by  adding  thereto  the  parties  named  in  the  plea, 
a  second  plea  further  objecting  to  the  bill  for  the  omission  of 
other  parties  not  named  in  the  first  plea  cannot  be  filed.6  A 
plea  to  the  whole  bill  for  want  of  parties  will  be  overruled  if, 
in  any  aspect  of  the  bill,  the  parties  therein  named  would  not  be 
necessary.7 

§  131.  Piea3  of  statute.  —  Pleas  in  bar  set  up  some  reason 
founded  on  the  substance  of  the  case,  why  the  plaintiff  is  not 
entitled  to  relief.     They  rest  upon  some  matter  created  either  by 

21  Mitford's  PI.  ch.  2,  §  2,  part  2,  citing  See,  however,  Story's  Eq.  PI.  §  744,  and 
upon  last  point  Neve  v.  Weston,  3  Atk.     citations. 

0-57.  2  Rule  52 ;  United  States  v.  Gillespie, 

22  Wheeler  v.   McCormick,  8  Blatchf.     6  Fed.  R.  803. 

267 ;  Roemer  v.  Newwan,  19  Fed.  R.  98 ;  3  United  States  v.  Gillespie,  6  Fed.  R. 

Iligby  v.  Columbia  Rubber  Co.,  18  Fed.  803.    See  Rule  52. 

R.  601.     Contra,  Gold  &  Stock  Telegraph  *  Attorney-General  v.  Jackson,  11  Ves. 

Co.  v.  Pearce,  19  Fed.  R.  419.  367,  369 ;  Cook  v.  Mancius,  3  Johns.  Ch. 

23  Mitford's  Pleadings,  ch.  2,  §  2,  part  (N.  Y.)  427  ;  Dwight  v.  Central  Vermont 
2 ;  citing  Urlin  v.  Hudson,  1  Vern.  332.  R.  R.  Co.  9  Fed.  R.  785. 

But  see  the  positive  language  of   Rule        5  Goodyear  v.  Toby,  6  Blatchf.  130. 
31.  6  Rawlins  v.  Dalton,  3  Y.  &  Coll.  447. 

§  130.   1  Mitford's  PI.  ch.  2,  §  2,  part  2.        7  Homan  v.  Shiel,  2  Jones  (Irish),  164- 


§  131.]  PLEAS  OF  STATUTE.  197 

statute,  matter  of  record,  or  matter  in  pais,  which  last  term  sig- 
nifies a  matter  of  fact  which  is  not  of  record,  and  is  not  given  by 
statute  special  effect.  Pleas  founded  upon  matter  that  is  made 
a  bar  by  statute  rest  upon  the  statute  of  limitations,  the  statute 
of  frauds,  or  less  frequently  some  other  statute.  Federal  courts 
of  equity  are  not  bound  by  State  statutes  of  limitation,1  except 
in  cases  where  their  jurisdiction  is  concurrent  with  the  jurisdic- 
tion at  common  law  ;2  but  they  will  usually  follow  them,3  unless 
injustice  would  otherwise  be  done,4  thus  enforcing  the  doctrine 
of  equitable  laches ;  and  they  will  do  so  especially  when  suits 
are  brought  against  executors,5  or  to  foreclose  mortgages.6  More- 
over, the  lapse  of  time  for  a  shorter  period  than  the  statute  of 
limitations,  and  in  cases  to  which  that  statute  does  not  apply, 
will  often  be  held  such  laches  as  to  bar  the  complainant.7  It  is 
not  laches  for  a  complainant  to  delay  asserting  his  rights  until 
the  determination  in  another  suit,  brought  by  himself  or  another 
in  a  similar  position,  of  a  doubtful  question  of  law  materially 
affecting  their  validity.8  The  United  States  are  not  bound  by 
laches  ; 9  and  the  State  statutes  of  limitations  do  not  affect  them,10 
even,  it  has  been  said,  if  specially  named  therein.11  The  plea  of 
the  statute  of  limitations  is  in  substantially  the  same  form  as  a 
similar  plea  in  an  action  at  law,  but  no  special  form  is  essential.12 
If  the  bill  charge  fraud  or  other  matters,  which,  if  true,  would 
prevent  the  statute  from  depriving  the  complainant  of  relief,  the 
plea  must  deny  them.13  It  is  not  sufficient  to  deny  them  in  an 
answer  in  support  of  the  plea.14     The  statute  of  frauds  will  be 

§131.  *  Johnston  v.  Roe,  1  Fed.  R.  692 ;  84;   Rumford  Chemical  Works  v.  Vice, 

Etting  v.  Marx's  Executor,  4  Fed.  R.  673.  14  Blatchf.  179,  180 ;  Green  ».  Barney, 

But  see  Pratt  v.  Northam,  5  Mason,  95.  19  Fed.   R.  420;   People   v.   Cooper,  22 

2  Wagner  v.  Baird,  7  How.  234,  258 ;  Hun  (29  N.  Y.  S.  C.  R.)  515,  517. 

Godden  v.  Kimmell,  99  U.  S.  201 ;  Wilson  9  United  States  v.  Beebe,  127  U.  S.  338  ; 

v.  Koontz,  7  Cranch,  202.  United  States  v.  Insley,  130  U.  S.  203. 

8  Godden  v.  Kimmell,  99  U.  S.   201 ;  10  Gibson  v.   Chouteau,  13   Wall.  92  ; 

Meath    v.    Phillips    County,    108   U.   S.  United   States  v.   Thompson,   98   U.   S. 

553.  486. 

4  Fogg  v.  St.  Louis  H.  &  K.  R.  R.  Co.,  n  United  States  v.  Thompson,  98  U.  S. 
17  Fed.  R.  871,  873.  486,  490. 

5  Pulliam  v.  Pulliam,   10  Fed.  R.  53 ;  12  Harpending  v.  Reformed  Protestant 
Broderick's  Will,  21  Wall.  503.  Dutch  Church,  16  Pet.  455 ;  West  Port- 

6  Cleveland  Ins.  Co.  v.  Reed,  1  Biss.  land  Homestead  Association   v.  Lowns- 
180.  dale,   17   Fed.  R.  205;    Story's   Eq.  PI. 

7  Brown   v.  County  of   Buena  Vista,  §  752. 

95  U.  S.  157, 161.  w  Steams  v.  Page,  1  Story,  204. 

8  Buxton  w.James,  5  De  Gex  &  Sm.  SO,        H  Stearns  v.  Page,  1  Story,  204. 


198  PLEAS.  [CHAP.  IX. 

followed  by  the  Federal  courts.15  If  the  bill  shows  that  the 
complainant's  case  is  repugnant  to  the  statute  of  frauds,  it  is 
demurrable.16  This,  however,  is  rarely  the  case,  and  the  statute 
is  usually  referred  to  by  plea  or  answer.17  The  rule  has  been 
thus  stated  by  Lord  Chancellor  Cran worth:  "It  was  argued  that 
the  statute  of  frauds  was  not  open  to  the  defendant,  by  reason 
of  his  not  having  insisted  upon  the  statute  as  a  defence  ;  but  this 
is  a  mistake.  Where  a  defendant  admits  the  agreement,  if  he 
intends  to  rely  on  the  fact  of  its  not  being  in  writing  and  signed, 
and  so  being  invalid  by  reason  of  the  statute,  he  must  say  so ; 
otherwise  he  is  taken  to  mean  that  the  admitted  agreement  was 
a  written  agreement  good  under  the  statute,  or  else  that  on  some 
other  ground  it  is  binding  on  him  ;  but  where  he  denies  or  does 
not  admit  the  agreement,  the  burden  of  proof  is  altogether  upon 
the  plaintiff,  who  must  then  prove  a  valid  agreement  capable  of 
being  enforced."  18  The  facts  which  show  that  the  statute  applies 
must  be  stated  specifically.19  Otherwise  the  plea  is  bad.20  An 
act  of  Congress  ratifying  the  construction  of  an  otherwise  illegal 
structure  will,  if  constitutional,  abate  a  suit  for  an  injunction 
against  the  further  maintenance  of  the  structure,  although  not 
set  up  by  plea,  answer,  or  demurrer.21 

§  132.  Pleas  of  Matter  of  Record.  —  A  plea  founded  upon  matter 
of  record  sets  up  the  judgment  or  decree  of  a  court  of  record 
upon  the  same  matter  and  between  the  same  parties,  or  those  in 
privity  with  them,  in  a  cause  of  which  it  had  jurisdiction.  Pleas 
of  matter  of  record  are  in  some  of  the  books  distinguished  from 
pleas  of  matter  as  of  record.  This  distinction  was  due  to  the 
fact  that,  in  England,  the  Court  of  Chancery  in  its  equitable 
jurisdiction,  the  Court  of  Admiralty  and  ecclesiastical  courts 
were  deemed  courts  not  of  record,  although  their  decrees  had 
the  same  effect  as  the  judgments  of  courts  of  record.1  Judge 
Curtis  held  at  circuit,  that  a  judgment  in  a  court  of  a  foreign 

is  Randall  v.   Howard,  2  Black,  585,  M'Closkey    v.    Barr,    38    Fed.    R.    165, 

589.  169. 

16  Randall   v.   Howard,  2  Black,  585,  20  Bailey    v.    Wright,    2    Bond,    181 ; 

589.  M'Closkey  v.  Barr,  38  Fed.  R.  165,  169. 

"  For  an  illustration  of  the  plea,  see  21  The  Clinton  Bridge,  10  Wall.  454. 

Jackson  v.  Oglander,  2  H.  &  M.  465.  But  see  Griffing  v.  Gibb,  2  Black,  519; 

18  Ridgway  v.  Wharton,  3  De  G.  M.  &  Liverpool,   New   York,    &    Philadelphia 

G.  677,  689.     But  see  Heys  v.  Astley,  9  S.  S.  Co.  v.  Commissioners  of  Emigra- 

Law  Times  n.  s.  356.  tion,  113  U.  S.  33,  38. 

is  Bailey    v.    Wright,    2    Bond,    181 ;  §  132.  1  Story's  Eq.  PI.  §  778. 


§  133.]  PLEAS   OF   MATTER   IN   PAIS.  199 

country  cannot  be  pleaded  in  bar ; 2  but  in  the  present  state  of 
the  law,  the  soundness  of  his  decision  may  be  doubted.3  A  de- 
cree of  a  court  of  equity  will  not  be  a  bar  if  it  resulted  in  the 
dismissal  of  a  bill  without  prejudice;4  or  for  want  of  prosecu- 
tion ; 5  or,  for  a  slip  in  practice  ; 6  or,  by  the  former  English 
practice,  if  it  had  not  been  signed  and  enrolled,  although  it  could 
then  be  insisted  on  by  answer  as  a  good  defense.7  No  judgment 
or  decree  rendered  after  a  proceeding  not  in  rem,  in  which  the 
defendant  therein  was  not  served  with  process ; 8  or  in  which  the 
unsuccessful  party  was  denied  a  hearing,9  or  some  such  other 
gross  injustice  was  perpetrated  as  rendered  the  so-called  judicial 
proceeding  not  due  process  of  law,  is  of  any  effect.  Judgments 
or  decrees  obtained  by  fraud  are  not  conclusive  when  properly 
impeached.10  It  seems  that  a  decree  upon  a  bill  taken  as  con- 
fessed concludes  the  defendant  in  another  suit.11  In  pleading 
a  judgment  or  decree,  it  is  not  necessary  to  set  it  forth,  or  the 
proceedings  upon  which  it  was  founded,  at  length  ;12  but  so  much 
of  the  decree  and  pleadings  should  be  set  forth  as  will  show  that 
the  same  point  was  then  in  issue,13  and  the  court  may  require 
the  decree  to  be  pleaded  at  length  ; 14  or  if  the  plea  sets  up 
matter  of  record  in  the  same  court,  to  show  the  record  before  the 
plaintiff  is  required  to  take  action  upon  the  plea.15 

§  133.  Pleas  of  Matter  in  Pais.  —  Pleas  founded  upon  matter 
in  pais  state  some  other  reason,  for  example,  a  release,  or  au 

2  Lyman  v.  Brown,  2  Curt.  559.     See  8  Pennoyer  v.  Neff,  95  U.  S.  714  ;  Life 

Burnham  v.  Webster,  1W.&M.  172.  Insurance  Co.  v.  Bangs,  103  U.  S.  780; 

8  See  Martin  v.  Nicolls,  3  Simons,  458 ;  St.  Clair  v.  Cox,  106  U.  S.  350. 

Story's  Conflict  of  Laws,  §§  GOG-608,  and  9  Bischoff  v.  Wethered,  9  Wall.  812  ; 

notes.  Windsor    v.   McVeigh,    93    U.    S.   274; 

4  Durant  v.  Essex  Company,  7  Wal-  Bradstreet  v.  Neptune  Ins.  Co.,  3  Sumner, 
lace,  107 ;  House  v.  Mullen,  22  Wallace,  601. 

42,  46.  10  Pacific  Railroad  of  Missouri  v.  Mis- 

5  American  Diamond  Bock  Boring  Co.     suri  Pacific  Ry.  Co.,  Ill  U.  S.  505. 

v.  Sheldon,  17  Blatchf.  208  ;  8.  c.  4  Bann.  «  Thomson  v.  Wooster,  114  U.  S.  104, 

&  A.  551 ;  Keller  v.  Stolzenbach,  20  Fed.  Ill,  112  ;  Ogilvie  v.  Heme,  13  Ves.  563. 

It.  47  ;  Conn  v.  Penn,  5  Wheat.  424,  427  ;  12  Ricardo  v.  Garcias,  12  CI.  &  F.  368  ; 

Badger  v.  Badger,  1  Cliff.  241.  Story's  Eq.  PL  §  783. 

6  Durant  v.  Essex  Company,  7  Wall.  13  Garcias  v.  Ricardo,  14  Simons,  265 ; 
107,  109  ;  House  v.  Mullen,  22  Wall.  42,  Story's  Eq.  PL  §  791 ;  Emma  Silver  Min- 
46  ;  Walden  v.  Bodley,  14  Pet.  158  ;  Gist  ing  Co.  v.  Emma  Silver  Mining  Company 
v.  Davis,  2  Hill  Ch.  (S.  C.)  335;  Grubb  of  New  York,  1  Fed.  R.  39. 

v.  Clayton,  2  Hayw.  (N.  C  )  378.  See,  14  Emma  Silver  Mining  Co.  v.  Emma 
however,  Starr  v.  Stark,  1  Saw.  270.  .  Silver  Mining  Company  of  New  York,  1 

7  Anon.,  3  Atk.  809 ;  Story's  Eq.  PL     Fed.  R.  39. 
§  790.  is  Ibid. 


200  PLEAS.  [CHAP.  IX. 

account  stated,  or  a  purchase  without  notice  for  a  valuable  con- 
sideration, why  the  plaintiff  should  not  have  relief.1  A  plea  of 
purchase  without  notice  for  a  valuable  consideration  should  deny 
notice  positively,2  and  should  state  the  amount  of  the  consider- 
ation.3 It  is  insufficient  to  plead  that  the  defendant  paid  a 
"good  and  valuable  consideration,  to  wit,  a  certain  sum  of 
money."4  A  plea  to  a  bill  for  an  injunction  to  restrain  the 
infringement  of  a  reissued  patent,  which  set  up  that  the  claim 
had  been  unlawfully  expanded  so  as  to  embrace  subsequent 
improvements  covered  by  later  patents,  was  held  good.5  A 
plea  to  a  bill  filed  under  §  4918  of  the  Revised  Statutes  against 
the  owner  of  a  patent  interfering  with  that  of  the  complainant, 
which  set  up  that  the  invention  described  in  the  complainant's 
patent  was  described  in  a  previous  English  patent  published  in 
the  United  States,  and  filed  in  the  Patent  Office  here  before  the 
issue  of  the  complainant's  patent,  was  held  bad  and  overruled.6 

§  134.  Pleas  to  the  Discovery.  —  Pleas  to  the  discovery  set  up 
new  matter,  showing  (1)  that  the  plaintiff's  case  is  not  such 
as  entitles  a  court  of  equity  to  assume  jurisdiction  to  compel 
a  discovery  in  his  favor  ;  (2)  that  the  plaintiff  has  no  such 
interest  in  the  subject-matter  of  the  action  as  entitles  him  to 
call  upon  the  defendant  for  a  discovery ;  (3)  that  the  defendant 
has  no  such  interest  in  the  subject-matter  of  the  action  as  will 
entitle  the  plaintiff  to  call  upon  him  for  a  discovery ;  (4)  that 
the  situation  of  the  defendant  renders  it  improper  for  a  court  of 
equity  to  compel  him  to  make  a  discovery.1  Of  them,  Professor 
Langdell  says:  "  But  it  should  be  added  that,  while  demurrers 
to  discovery  are  common,  there  are  few  instances  of  pleas  of  that 
kind ;  and  the  cases  are  few  in  which  it  would  be  advisable  to 
resort  to  such  a  plea,  since  the  question  can  be  raised  equally 
well  by  answer,  and  then  the  defendant's  own  statement  of  the 
facts  will  be  equally  conclusive."2 

§  135.  "When  a  Plea  must  be  filed.  —  Unless  the  defendant's 
time  has  been  enlarged,  for  cause  shown,  by  a  judge  of  the 
court,  upon  motion  for  that  purpose,  the  plea  should  be  filed 

§  133.  i  Story's  Eq.  PI.  §§  795-815.  6  Hubbell  v.  De  Land,  14  Fed.  R.  471. 

2  Wood  v.  Mann,  1  Sumner,  506.  G  Pentlarge  v.  Pentlarge,  19  Fed.  R. 

8  Secombe  v.  Campbell,  18  Blatclif.  817 ;  s.  c.  22  Fed.  R.  412.     But  see  Fos- 

108.  ter  v.  Lindsay,  3  Dill.  126,  131. 

*  Secombe  v.  Campbell,  18  Blatcbf.  §134.    »  Mitford's  PI.  ch.  2,  §2,  part  2. 

108.  2  Langdell's  PI.  Eq.  §  148. 


§  136.]  FRAME  OF  A  PLEA.  201 

on  the  rule-day  next  succeeding  that  of  entering  the  defendant's 
appearance.1 

§  136.  Frame  of  a  Plea.  —  A  plea  is  intituled  in  the  cause,  and 
is  headed  as  follows:  "The  plea  of  the  above-named  defendant 
(or,  of  A.  B.,  one  of  the  above-named  defendants)  to  the  bill  of 
complaint  of  the  above-named  plaintiff  (or,  plaintiffs). "  When 
put  in  by  more  than  one  defendant,  the  heading  runs  as  follows : 
"  The  joint  and  several  plea  of  the  above-named  defendants  (or 
of  A.  B.  and  C.  D.,  two  of  the  above  named  defendants  :  " 2  but 
if  filed  by  husband  and  wife  in  the  wife's  interest  only,  the  words 
"  and  several "  should  be  omitted  ;  though  their  use,  being  mere 
surplusage,  will  not  vitiate  the  plea.2  The  title  of  the  plea 
should  agree  with  that  of  the  cause  as  stated  in  the  bill.  Any 
corrections  which  are  desired  to  be  made  must  be  put  in  the 
heading,  thus :  "  The  plea  of  the  above-named  defendant,  John 
Aber  (in  the  bill,  by  mistake  called  Henry  Aber)  ; "  or,  "  The 
plea  of  Henry  Curtis  and  Mary  his  wife,  lately,  and  in  the  bill 
called  Mary  Robinson,  spinster  (or  widow,  as  the  case  may  be)."3 
When  accompanied  by  an  answer  or  demurrer,  it  should  be 
headed:  "The  plea  and  answer;"  or  "The  joint;"  or  "joint 
and  several  plea  and  answer ; "  or  "  The  joint  and  several  plea, 
answer,  and  demurrer,"  &c,  according  to  the  circumstances.4 
Like  a  demurrer,  it  is  usually,  but  not  necessarily,  introduced  by 
a  useless  protestation  against  the  confession  of  the  truth  of  any 
matter  contained  in  the  bill.5  After  the  protestation,  the  de- 
fendant should  state  in  the  plea  the  extent  to  which  it  goes ; 
as  whether  it  is  to  the  whole  bill,  or  to  part  only,  and  in  the 
latter  case  the  part  to  which  it  is  intended  to  apply.6  Next 
should  come  the  substance  of  the  plea  together  with  such  aver- 
ments as  are  necessary  to  support  it."  If  these  matters  are 
within  the  defendant's  knowledge  he  should  state  them  posi- 
tively.8 Otherwise,  upon  information  and  belief.9  The  allega- 
tions must  be  made  with  certainty  and  not  by  way  of  argument, 

§  135.    »  Rule  18.  6  Mitford's    PI.   ch.   2,    §   2,   part  2 ; 

§  136.   i  Daniell's   Ch.  Pr.   (5th  Am.  Story's  Eq.  PI.  §  694. 
ed.)  681.  7  Mitford's    PI.   ch.   2,   §   2,   part  2; 

2  Fitch  v.  Chapman,  2  Sim.  &  S.  31.  Story's  Eq.  PI.  §  694. 

8  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  681,         8  Foster  v.  Vassall,  3  Atk.  587  ;  Boone 

682.  v.  Chiles,  10  Pet.  176,  210-213;  Story's 

*  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  682.  Eq.  PI.  §  662. 

6  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  682;  9  Bolton  v.  Gardner,  3  Paige  (N.  Y), 

Story's  Eq.  PI.  §  694.  273  ;  Story's  Eq.  PI.  §  602. 


202  PLEAS.  [chap.  IX. 

inference,  or  conclusion.10  The  plea  cannot  properly  allege 
and  rely  upon  matters  all  of  which  are  apparent  upon  the  face 
of  the  bill.11  The  conclusion  of  the  plea  is  usually  a  repetition 
that  the  matters  so  offered  are  relied  upon  as  an  objection  to  the 
jurisdiction,  or  to  the  person  of  the  plaintiff  or  defendant,  or  to 
the  frame  of  the  bill  and  suit,  or  in  bar  of  the  suit ;  praying 
the  judgment  of  the  court,  whether  the  defendant  ought  to  be 
compelled  to  make  any  further  or  other  answer  to  the  bill,  or  so 
much  thereof  as  the  plea  extends  to.12  It  does  not  appear  that 
any  particular  form  of  conclusion  is  necessary  to  a  plea  in 
equity.13  Every  plea  must  be  supported  by  a  certificate  of  coun- 
sel, that  in  his  opinion  it  is  well  founded  in  point  of  law,  and  by 
the  affidavit  of  the  defendant,  that  it  is  not  interposed  for  delay, 
and  that  it  is  true  in  point  of  fact.14  When  the  facts  alleged 
in  the  plea  are  within  the  defendant's  knowledge,  he  must  swear 
to  them  positively.  Otherwise,  upon  information  and  belief.15 
Whether  the  certificate  of  counsel  is  required  when  the  defend- 
ant defends  in  person  has  never  been  decided.16  If  the  affidavit 
or  certificate  are  omitted  the  proper  remedy  would  seem  to  be 
a  motion  to  take  the  paper  purporting  to  be  a  plea  off  the  file ; 17 
but,  according  to  the  language  of  a  recent  opinion  of  the  Supreme 
Court,  the  plea  might  then  be  disregarded.18  By  setting  down 
the  plea  for  argument,  such  a  defect  is  waived.19  Like  all  other 
proceedings  in  equity,  a  plea  must  contain  no  scandalous  or 
impertinent  matter.  If  it  does,  the  same  proceedings  may  be 
taken  upon  it  as  when  scandal  or  impertinence  is  contained  in 
an  answer.20  Only  one  plea  can  be  filed  unless  by  special  leave 
of  the  court.21 

§  137.     Answers  with  Pleas.  —  Although  the  purpose  of  a  plea 
is  usually  to  avoid  discovery,  yet  in  certain  cases  it  must  be  ac- 

10  Emma  Silver  Mining  Co.  v.  Emma     Ch    Pr.  97  ;  Daniell's  Ch.  Pr.  (5th  Am. 
Silver  Mining  Company  of  New  York,     ed.)  311,  note  7. 

1  Fed.  R.  39 ;  Nabob  of  Arcot  v.  East        17  Ewing  v.  Blight,  3  Wall.  Jr.  134. 
India  Co.,  3  Brown,  Ch.  C.  292;  Story's        18  National  Bank  v.  Insurance  Co.,  104 

Eq.  PI.  §  662.  U.  S.  54. 

11  Billing  v.  Flight,  1  Madd.  230 ;  Story's        19  Goodyear  v.  Toby,  6  Blatchf.  130. 
Eq.  PI.  §  660.  20  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  686. 

12  Story's    Eq.    PI.   §   694 ;    Mitford's  See  Dixon  v.  Olmius,  1  Cox,  Eq.  412. 

PI.  ch.  2,  §  2,  part  2.  21  Wheeler  v.  McCormick,  8  Blatchf. 

13  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  688.     267  ;  Lamb  v.  Starr,  Deady,  351  ;  Noyes 

14  Rule  31.  v.   Willard,   1   Woods,  187 ;   Reissner  v. 

15  Ewing  v.  Blight,  3  Wall.  Jr.  134.  Anness,  12  Off.  Gaz.  842  ;  s.  c.  3  Bann  & 
«  See  U.  S.  R.  S.  §  747  ;  1  Hoffman's     A.  148. 


§  137.]  ANSWERS   WITH    PLEAS.  203 

companied  by  an  answer.  If  the  plea  be  to  a  part  only  of  the 
bill,  it  must  be  accompanied  by  an  answer  or  demurrer  to  the  res- 
idue.1 "  In  every  case  where  the  bill  specially  charges  fraud  or 
combination,  a  plea  to  such  part  must  be  accompanied  with  an 
answer  fortifying  the  plea  and  explicitly  denying  the  fraud  and 
combination,  and  the  facts  on  which  the  charge  is  founded."2 
Negative  and  anomalous  pleas  must  usually  be  accompanied  by 
an  answer  giving  the  discovery  required  by  the  bill.3  This  sub- 
ject is  now  of  comparatively  little  importance,  as  the  objections 
raised  by  such  pleas  can  now  be  taken  by  answer4  with  more 
safety  and  convenience.  The  clearest  statement  and  explanation 
of  the  rule  with  which  the  writer  is  acquainted,  is  that  by  Pro- 
fessor Langdell.  "  If  the  defence  which  is  set  up  by  a  plea  has 
been  anticipated  by  the  bill,  and  evidence  has  been  charged  in 
disproof  of  the  defence,  the  defendant  must  answer  such  charges 
of  evidence,  notwithstanding  his  plea,  for  an  answer  to  that 
extent  will  be  needed  in  trying  the  truth  of  the  plea.  The  de- 
fendant, therefore,  incorporates  an  answer  with  his  plea ;  and 
then  the  answer  is  said  to  support  the  plea.  Such  an  answer,  it 
will  be  observed,  contains  discovery  only,  and  it  is  called  an 
answer  in  support  of  a  plea,  to  distinguish  it  from  the  case  where 
a  defendant  defends  by  answer  as  to  part  of  the  bill,  and  by  plea 
as  to  part."5  "If  a  bill  anticipates  a  defence,  and,  without  ad- 
mitting its  truth,  replies  to  it  affirmatively,  and  the  defendant 
wishes  to  set  up  the  defence  by  plea,  it  is  obvious  that  he  must 
traverse  the  anticipatory  replication ;  for  otherwise,  in  the  event 
of  issue  being  taken  upon  the  truth  of  the  plea,  the  affirmative 
replication  will  be  admitted  to  be  true.  A  negative  rejoinder, 
therefore,  must  be  incorporated  with  the  affirmative  plea.  Such 
pleas  have  become  common  in  modern  times ;  and  being  partly 
affirmative  and  partly  negative,  they  are  distinguished  by  the 
name  of  anomalous  pleas.  If  the  defendant  should  not  be  pre- 
pared to  deny  the  truth  of  the  affirmative  replication,  and  should 
wish  to  set  up  an  affirmative  answer  to  it,  of  course  both  branches 
of  his  plea  should  be  affirmative  ;  but  no  instance  of  such  a  plea 

§  137.  1  Rules  18,  32;  Langdell's  Eq.  .  3  Dwight  v.  Central  Vermont  R.R.  Co., 
PI.  §  99;  Ferguson  v.  O'Harra,  Pet.  9  Fed.  R.  785;  Langdell's  Eq.  PI.  §§  101- 
C.  C.  493.  114. 

2  Rule  32 ;  Piatt  v.  Oliver,  1  McLean,         *  Rule  39. 
295 ;    Lewis   v.  Baird,    3    McLean,    5G ;         &  Langdell's  Eq.  PI.  §  100. 
Bailey  v.  Wright,  2  Bond,  181. 


204  PLEAS.  [CHAP.  IX. 

has  been  found  in  the  reported  cases.  If  an  anomalous  plea  be 
put  in  issue,  it  will  be  seen  that  each  party  has  something  to 
prove ;  namely,  the  defendant  his  affirmative  defence,  and  the 
plaintiff  his  affirmative  replication;  and  the  plaintiff  is,  therefore, 
entitled  to  discovery  as  to  the  latter.  Consequently,  an  anom- 
alous plea  must  always  be  supported  by  an  answer  as  to  the 
allegations  which  constitute  the  replication,  and  as  to  all  charges 
of  evidence,  if  any,  in  support  of  such  allegations."  6  Such  an 
answer  is  usually  prefaced  by  an  averment  that  the  defendant 
does  not  thereby  waive  his  plea,  but  wholly  relies  thereon.7 

§  138.  Proceedings  of  the  Plaintiff  when  a  Plea  is  filed.  —  If 
the  allegations  in  a  plea  are  sufficient  and  true,  but  the  plaintiff 
can  produce  new  matter  which  will  avoid  its  effect,  he  must 
amend  his  bill,  introducing  by  way  of  pretence  or  otherwise  a 
statement  of  the  matters  contained  in  the  plea,  and  also  a  sub- 
stantive allegation  of  the  new  matter  by  which  he  avoids  it. 
In  such  a  case,  at  common  law  or  by  the  earlier  chancery  prac- 
tice, he  would  reply  by  confession  and  avoidance  ;  but  special 
replications  are  no  longer  used  in  equity,  their  purpose  being 
sufficiently  answered  by  the  practice  of  amendment.1  Other- 
wise, the  plaintiff  may  either  move  to  take  the  plea  off  the  file 
for  irregularity,2  or  set  down  the  plea  to  be  argued,3  or  move 
for  a  reference  to  a  master,4  or  take  issue  upon  the  plea.5  If 
he  neither  amends  nor  takes  any  of  these  proceedings  before 
the  rule-day  next  after  that  on  which  the  same  was  filed,  he  is 
deemed  to  admit  the  truth  and  sufficiency  of  the  plea,  and  his 
bill  will  be  dismissed  as  of  course,  unless  a  judge  of  the  court 
shall  allow  him  further  time  for  the  purpose.6  More  indulgence 
in  this  respect  will  be  allowed  to  States  than  to  individuals,7 
and  the  plaintiff  is  not  obliged  to  take  notice  of  a  plea  until  it 
has  been  entered  in  the  order  book  or  served  upon  him.8  In 
case  of  a  motion  to  take  the  plea  off  the  file,  it  will  be  more 
prudent  to  obtain  an  extension  of  time  wherein  to  reply  or  set 

6  Langdell's  Eq.  PI.  §  101.     See  also  2  Ewing  v.  Blight,  3  Wall.  Jr.  134. 

Langdell's  Eq.  PI.  §§   102-114;    Story's  3  Rule  33. 

Eq.  PI.  §§  668-674 ;  Foley  v.  Hill,  3  Myl.  *  Tarleton  v.  Barnes,  2  Keen,  632. 

&  Cr.  476.  5  Rule  33. 

*  Story's  Eq.  PI.  §  695.  6  Rule  38. 

§138.  1  Mason  v.  Hartford,  Providence,  7  Rhode  Island  v.  Massachusetts,   14 

&  Fishkill  R.  R.   Co.,  10  Fed.   R.  334 ;  Pet.  210. 

Rules  29,  66 ;  Story's  Eq.  PI.  chs.  xix.,  8  Newby  v.  Oregon  Central  Ry.  Co.,  1 

xx.  Saw.  63,  65. 


§  139.]  MOTION   TO   TAKE    A    PLEA   OFF   THE   FILE.  205 

down  the  plea,  in  case  it  should  be  allowed  to  remain.9  No  one, 
except  the  defendant  who  files  a  plea,  can  take  advantage  of 
the  failure  of  the  plaintiff  to  act  upon  it.10  Where  the  plaintiff 
had  taken  no  action  upon  the  plea  for  eight  months,  it  was  held 
that  the  defendant  might  withdraw  it  and  file  an  answer.11 
Otherwise,  neither  party  is,  in  general,  at  liberty  to  take  any 
step  in  a  cause  after  the  filing  of  a  plea,  until  the  plea  is  dis- 
posed of.12  If  the  defendant  pleads  to  the  relief  only,  and  pro- 
poses to  answer  the  whole  discovery  required,  the  plaintiff  may 
file  exceptions  to  the  answer.13  This,  it  was  formerly  held,  he 
could  not  do  unless  by  special  leave  of  the  court,  without 
thereby  admitting  the  truth  of  a  plea  which  extended  to  any 
part  of  the  discovery.14  In  an  extraordinary  case,  a  motion  for 
an  injunction  might  be  made  while  a  plea  was  pending;  but  the 
more  usual  course  is  to  pray  the  court  to  expedite  the  hearing 
of  the  plea.15  When  a  plea  and  a  demurrer  were  filed  at  the 
same  time,  it  was  held  that  action  on  the  plea  should  be  post- 
poned till  the  hearing  on  the  demurrer.16 

§  139.  Motion  to  take  a  Plea  off  the  File.  —  A  motion  to  take  a 
plea  off  the  file  is,  it  seems,  the  proper  remedy,  when  the  plea 
was  filed  too  late,1  or  has  such  an  irregularity  in  form  as  the 
omission  of  the  requisite  affidavit  and  certificate.2  In  a  patent 
case,  a  plea  which  simply  denied  infringement  was  stricken 
from  the  files  as  improper  in  form.3  When  two  pleas  are  filed 
without  special  leave,  the  defendant  will  be  obliged  to  elect 
between  them  within  ten  days.  Otherwise,  both  will  be  ordered 
to  stand  for  an  answer,4  or  possibly  be  stricken  out.5  Unless, 
however,  an  objection  to  such  a  defect  is  specifically  made,  it 
will  be  considered  waived.6 

9  See  Rule  38.  §  139.  1  McKewan  v.  Sanderson,  L.  R. 

i°  Chicago  &  Alton  R.  R.  Co.  v.  Union  16  Eq.  316  ;  Ewing  v.  Blight,  3  Wall.  Jr. 

Rolling  Mill  Co.,  109  U.  S.  702,  717,  134. 

11  Oliver  v.  Decatur,  4  Cranch  C.  C.  2  Ewing  v.  Blight,  3  Wall.  Jr.  134; 
458.  Sharp   v.   Reissner,   20  Blatchf.   10,   13. 

12  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  691 ;  But  see  National  Bank  v.  Insurance  Co., 
Buchanan  v.  Hodgson,  11  Beav.  368.  104  U.  S.  54,  76;  Secor  v.  Singleton,  9 

13  Pigot  v.  Stace,  2  Dickens,  496 ;  Sid-  Fed.  R.  809  ;  s.  c.  3  McCrary,  230. 

ney  v.  Perry,  2  Dickens,  602.  3  Sharp  v.  Reissner,  20  Blatchf.  10, 13. 

14  Darnell    v.   Reyny,    1    Vern.   344;  *  Reissner  v.  Anness,  12  Off.  Gaz.  842  ; 
Brovnell  v.  Curtis,  10  Paige  (N.  Y.),  210.  s.  c.  3  Bann.  &  A.  148 ;  Noyes  v.  Willard, 

15  Ewing  v.  Blight,  3  Wall.  Jr.  139 ;  1  Woods,  187. 

Humphreys  v.  Humphreys,  3  P.  Wms.  6  Newby  v.  Oregon  Central  Ry.  Co., 

395.  1  Saw.  63,  67. 

16  Cambell  v.  Mayer,  33  Fed.  R.  795.  6  Sharon  v.  Hill,  22  Fed.  R.  28. 


206  PLEAS.  [chap.  IX. 

§  140.  Argument  of  a  Plea.  —  "  If  the  plaintiff  conceives  a  plea 
to  be  defective  in  point  of  form  or  substance,  he  may  take  the 
judgment  of  the  court  upon  its  sufficiency.  And  if  the  de- 
fendant is  anxious  to  have  the  point  determined,  he  may  also 
take  the  same  proceeding."  1  A  plea  is  set  down  for  argument 
in  the  same  manner  as  is  a  demurrer,  and  the  proceedings  at 
the  argument  are  also  substantially  the  same.  A  plaintiff  has 
been  allowed,  although  the  practice  is  irregular,  to  file  a  de- 
murrer to  a  plea;  in  which  case  the  demurrer  presents  the 
question  of  the  sufficiency  of  the  bill  as  well  as  the  plea.2  The 
sufficiency  of  the  bill  as  to  substance  is  also  tested  when 
the  plea  is  set  down  for  argument  ;  but  it  has  been  said  that 
the  allegations  therein  are  not  taken  so  strictly  against  the  com- 
plainant as  in  case  of  a  demurrer.3  For  the  purpose  of  the 
argument,  all  allegations  in  the  plea  which  are  not  inconsistent 
with  each  other  are  presumed  to  be  true  ;4  but  if  a  document  is 
referred  to  in  the  plea  and  annexed  thereto,  its  language  will 
control  the  description  of  it  set  forth  in  the  body  of  the  plea.5 
Upon  argument,  a  plea  may  be  allowed,  or  the  benefit  thereof 
may  be  reserved  to  the  hearing,  or  it  may  be  ordered  to  stand 
for  an  answer,  or  it  may  be  overruled.6  "  In  the  first  case  the 
plea  is  determined  to  be  a  full  bar  to  so  much  of  the  bill  as 
it  covers,  if  the  matter  pleaded,  with  the  averments  necessary 
to  support  it,  are  true."  7  If,  therefore,  a  plea  is  allowed  upon 
argument  the  plaintiff  ma}'  take  issue  upon  it,  and  have  a 
trial  of  the  truth  of  the  facts  upon  which  it  is  sought  to  be 
supported.8  "  If  a  plea  accompanied  by  an  answer  is  allowed, 
the  answer  may  be  read  at  the  hearing  of  the  cause  to  counter- 
prove  the  plea."9  If  upon  the  hearing  any  demurrer  or  plea 
be  allowed,  the  defendant  is  entitled  to  his  costs.  But  the 
court  may,  in  its  discretion,  upon  motion  of  the  plaintiff,  allow 
him  to  amend  his  bill  upon  such  terms  as  it  shall  deem  rea- 
sonable.10    "  If,  upon  argument,  the  benefit  of  a  plea  is  saved 

§  140.    l  Mitford's  PL  ch.  2,  §  2,  part  2.         5  Wheeler  v.  McCormick,  8  Blatchf. 

2  Beard  v.  Bowler,  2  Bond,  13  ;  Good-     267. 

yeary.  Toby,  6  Blatchf.  130.     See  Stead's         'Mitford's  PL   ch.    2,   §   2,   part  2; 
Executors  v.  Course,  4  Cranch,  403,  410.       See  Rhode  Island  v.   Massachusetts,   14 

3  Rumbold  v.  Forteath,  2  Jur.  (n.  s.)     Pet.  210,  257-259. 

686.  7  Mitford's  PL  ch.  2,  §  2,  part  2. 

*  Melius  v.  Thompson,  1  Cliff.   125 ;         8  Mitford's  PL  ch.  2,  §  2,  part  2. 

Executors    of    Gallagher  v.  Roberts,   1         9  Mitford's  PL  ch.  2,  §  2,  part  2. 
Wash.  320.  10  Rule  35. 


§  140.]  ARGUMENT   OF   A   PLEA.  207 

to  the  hearing,  it  is  considered  that  so  far  as  appears  to  the 
court  it  is  a  full  defence,  but  that  there  may  be  matter  disclosed 
in  evidence  which  would  avoid  it,  supposing  the  matter  pleaded 
to  be  strictly  true ;  and  the  court  therefore  will  not  preclude 
the  question."  u  In  such  a  case,  the  truth  of  the  plea  must  be 
established,  and  at  the  hearing  the  plaintiff  may  avoid  it  by  other 
matter,  which  he  is  at  liberty  to  prove.12  "  When  a  plea  is 
ordered  to  stand  for  an  answer,  it  is  merely  determined  that  it 
contains  matter  which  may  be  a  defence,  or  part  of  a  defence  ; 
but  that  it  is  not  a  full  defence,  or  it  has  been  informally  offered 
by  way  of  plea,  or  it  has  not  been  properly  supported  by  answer 
so  that  the  truth  of  it  is  doubtful.  For  if  a  plea  requires  an 
answer  to  support  it,  upon  argument  of  the  plea  the  answer 
may  be  read  to  counterprove  the  plea ;  and  if  the  defendant 
appears  not  to  have  sufficiently  supported  his  plea  by  his  answer, 
the  plea  must  be  overruled,  or  ordered  to  stand  for  an  answer 
only.  A  plea  is  usually  ordered  to  stand  for  an  answer  where 
it  states  matter  which  may  be  a  defence  to  the  bill,  though 
perhaps  not  proper  for  a  plea,  or  informally  pleaded.  But  if  a 
plea  states  nothing  which  can  be  a  defence,  it  is  merely  over- 
ruled. If  a  plea  is  ordered  to  stand  for  an  answer,  it  is  allowed 
to  be  a  sufficient  answer  to  so  much  of  the  bill  as  it  covers, 
unless  by  the  bill  liberty  is  given  to  except.  But  that  liberty 
may  be  qualified,  so  as  to  protect  the  defendant  from  any  par- 
ticular discovery  which  he  ought  not  to  be  compelled  to  make ; 
and  if  a  plea  is  accompanied  by  an  answer,  and  is  ordered  to 
stand  for  an  answer  without  liberty  to  except,  the  plaintiff  may 
yet  except  to  the  answer  as  insufficient  to  the  parts  of  the  bill 
not  covered  by  the  plea."  13  Where  one  defense  is  made  by  the 
plea  and  another  by  an  answer  filed  with  it,  the  plea  may  be 
ordered  to  stand  for  an  answer.14 

A  plea  formerly  might  have  been  overruled  for  three  reasons  ; 
because  it  was  bad,  as  defective  in  form,  or  insufficient  in  point 
of  law ;  because,  though  good  as  to  a  part  of  the  bill,  it  was  filed 
to  more  than  it  could  cover ;  and  because  the  defendant  an- 
swered  some   or   all   of   the   matters    covered   by   it.15      Now, 

11  Mitford's  PI.  ch.  2,  §  2,  part  2.  15  Wigram  on  Discovery  (1st  ed.),  172- 

12  Story's  Eq.  PL  §  698;  Rhode  Island  181  ;  Story's  Eq.  PI.  §§  688,  693  ;  Thring 
v.  Massachusetts,  14  Pet.  210,  257-259.  v.   Edgar,   2  Sim.   &  S.   274;  Salkeld  v. 

13  Mitford's  PI.  ch.  2,  §  2,  part  2.  Science,  2  Ves.  Sen.  107  ;   Chamberlain 

14  Lewis  v.  Baird,  3  McLean,  56,  62.  v.  Agar,  2  V.  &  B  259 ;  Stearns  v.  Page, 


208  PLEAS.  [chap.  IX. 

however,  a  pure  plea,  though  filed  to  the  whole  bill,  may  be 
sustained  as  to  a  part  only.16  But  an  answer  to  the  whole  bill 
will  overrule  a  plea  in  bar  filed  by  the  answering  defendant.17 
"The  rule  that  no  plea  is  to  be  held  bad  only  because  the  answer 
may  extend  to  some  part  of  the  same  matter  as  may  be  covered 
by  the  plea,  is  not  applicable  where  the  answer  extends  to  the 
whole  of  the  matter  covered  by  the  plea."  18  If  upon  the  hear- 
ing any  plea  is  overruled,  the  plaintiff  is  entitled  to  his  costs  in 
the  cause  up  to  that  period,  unless  the  court  is  satisfied  that  the 
defendant  has  good  ground,  in  point  of  law  or  fact,  to  interpose 
the  same,  and  it  was  not  interposed  vexatiously  or  for  dela}^. 
And  upon  the  overruling  of  any  plea,  the  defendant  is  assigned 
to  answer  the  bill,  or  so  much  thereof  as  is  covered  by  the  plea, 
the  next  succeeding  rule-day,  or  at  such  other  period  as,  con- 
sistently with  justice  and  the  rights  of  the  defendant,  the  same 
can  in  the  judgment  of  the  court  be  reasonably  done  ;  in  de- 
fault whereof,  the  bill  is  taken  against  him  pro  confesso,  and  the 
matter  thereof  proceeded  in  and  decreed  accordingly.19  Under 
this  rule  it  has  been  held  that  permission  to  answer  cannot  be 
denied  the  defendant.20  Upon  the  overruling  of  a  plea,  permis- 
sion to  amend  it  may  be  given  ; 21  or  a  second  plea  upon  a 
different  ground  may  be  interposed,  but  only  by  leave  of  the 
court.22  If  put  in  without  leave,  such  a  new  plea  will,  on 
motion,  be  taken  off  the  file.23  It  seems  that  after  his  plea  is 
overruled,  the  defendant  may  demur,  at  least  to  a  part  of  the 
bill,  by  leave  of  the  court.24 

§  141.  Motion  for  a  Reference  of  a  Plea.  —  There  are  some  pleas 
upon  which  no  issue  is  taken.  Such  were  pleas  of  outlawry  and 
excommunication,  which  were  always  pleaded  sub  sigillo,  that  is, 

1  Story,  204 ;  Ferguson  v.  O'Harra,  Pet.  19  Rule  36. 

C.  C.  493.  20  Wooster  v.  Blake,  7  Fed.  R.  816. 

16  Rules  36,  37  ;  Wythe  v.  Palmer,  21  Sanders  v.  King,  6  Madd.  61 ;  Loving 
3  Saw.  412 ;  Kirkpatrick  v.  White,  4  v.  Fairchild,  1  McLean,  333 ;  U.  S.  R.  S. 
Wash.  595.    But  see  Milligan  v.  Milledge,  §954. 

3  Cranch,  220.  ^  McKewan  v.    Sanderson,   L.  R.   16 

17  Grant  v.  Phoenix  Life  Ins.  Co.,  121  Eq.   316 ;    Chadwick    v.    Broadwood,    3 
TJ.  S.  105,  115;  Dakin  v.  Union  Pacific  Beav.  316;  Lamb  v.  Starr,  Deady,  350; 
Ry.   Co.,  5  Fed.  R,  665 ;  Crescent  City  Wheeler  v.  McCormick,  8  Blatchf.  267. 
Live  Stock  Co.  v.  Butchers'  Union  Live  23  McKewan   v.    Sanderson,   L.  R.   16 
Stock  Co.,   12  Fed.   R.   225.      But    see  Eq.  316. 

Hayes  v.  Dayton,  8  Fed.  R.  702,  706.  24  The  East  India  Company  v.  Camp- 

18  Grant  v.  Phoenix  Life  Ins.  Co.,  121  bel,  1  Ves.  Sen.  246;  Daniell's  Ch.  Pr. 
U.  S.  105,  115.  (5th  Am.  ed.)  702. 


§  143.]  HEARING  UPON   PLEAS.  209 

under  the  seal  of  the  court  which  had  pronounced  the  sentence. 
The  truth  of  the  fact  pleaded  in  them  could,  therefore,  be  ascer- 
tained from  the  form  of  pleading.  The  plaintiff  was,  however, 
at  liberty  to  show  that  the  plea  was  defective  in  form,  or  that  it 
did  not  apply  to  the  particular  case  ;  and  for  these  purposes  he 
might  have  the  plea  argued.1  "  Pleas  of  a  former  decree,  or  of 
another  suit  depending,  are  generally  in  the  same  predicament, 
being  referred  to  a  master  to  inquire  into  the  fact.  If  in  any  of 
these  cases,  the  master  reports  the  fact  true,  the  bill  stands 
instantly  dismissed,  unless  the  court  otherwise  orders.  But  the 
plaintiff  may  except  to  the  master's  report,  and  bring  on  the 
matter  to  be  argued  before  the  court ;  and  if  he  conceives 
the  plea  to  be  defective,  in  point  of  form  or  otherwise,  indepen- 
dent of  the  mere  truth  of  the  fact  pleaded,  he  may  set  down  the 
plea  to  be  argued  as  in  the  case  of  pleas  in  general."  2  Where 
it  is  manifest  upon  the  face  of  the  plea  that  the  two  suits  are  not 
alike,  no  reference  will  be  ordered.3  By  the  English  practice,  if 
the  plaintiff  set  down  a  plea  for  argument,  he  admitted  its  truth  ; 
and  if  good  in  form  it  was  sustained.4 

§  142.  Hearing  upon  Pleas.  —  If  the  complainant  deems  a  plea 
sufficient  in  form,  or  it  has  been  so  held  by  the  court,  he  can 
still  test  its  truth  by  taking  issue  upon  it.1  He  does  this  by 
filing  the  general  replication.2  The  proceedings  in  taking  testi- 
mony, and  bringing  the  cause  to  a  hearing,  are  substantially  the 
same  as  after  an  issue  raised  upon  an  answer.3  At  the  hearing, 
the  defendant  has  the  right  to  open  and  close  the  argument,  and 
the  burden  of  proof  rests  upon  him.4  If  the  plea  be  then  found 
false,  the  plaintiff  may,  if  he  so  choose,  have  the  bill  taken  pro 
confesso.6  "  Having  put  the  plaintiff  to  the  trouble  and  delay  of 
an  issue,  the  defendant  cannot,  after  it  has  been  found  against 

§  141.   !  Mitford's  PI.  ch.  2,  §  2,  part  2.  2  Hughes  v.  Blake,  6  Wheat.  453. 

*  Mitford's    PI.   ch.    2,    §   2,  part  2.  8  Reissner  v.  Anness,  13  Off.  Gaz.  7  ; 

See  also   Emma    Silver    Mining    Co.   v.  Lilienthal  v.  Washburn,  8  Fed.  R.  707 ; 

Emma  Silver  Mining  Company  of  New  Hughes   v.   Blake,   6    Wheat.   453,   472  ; 

York,  1  Fed.  R.  39 ;    Jones  v.  Segueira,  Farley  v.  Kittson,  120  U.  S.  303. 

1  Phillips,  82;  Story's   Eq.   PI.  §§   700,  4  Stead's  Executors  v.  Course,  4  Cranch, 

743,744.  403,413;  Gernon  v.  Boecaline,  2  Wash. 

3  Loringu.  Marsh,  2  Cliff.  311.  199;  Farley  v.  Kittson,  120  U.  S.   303; 

4  Tarleton  v.  Barnes,  2  Keen,  632.  Lilienthal  v.  Washburn,  8  Fed.  R.  707  ; 
See  Story's  Eq.  PI.  §§  743,  744.  Sharon  v.  Hill,  22  Fed.  R.  28. 

§  142.  i   Mitford's    PI.    ch.    2,    §    2,         5  Kennedy  v.  Creswell,  101  U.  S.  G41, 
part  2  ;  Rhode  Island  v.  Massachusetts,     644  ;  Mitford's  PI.  ch.  2,  §  2,  part  2. 
14  Pet.  210,  257. 

14 


210  PLEAS.  [CHAP.  IX. 

him,  claim  the  right  to  file  an  answer,  although,  if  the  complain- 
ant desires  a  discovery,  which  the  plea  is  sought  to  avoid,  he  may 
undoubtedly  insist  upon  it."6  In  an  extraordinary  case,  how- 
ever, the  court  might  still  allow  the  defendant  to  answer."  If 
the  plea  were  found  true,  according  to  the  former  practice  the 
plea  was  held  a  complete  defense  to  so  much  of  the  bill  as  it  was 
intended  to  apply  to  ;  and  if  filed  to  the  whole  bill,  the  bill 
would  be  dismissed  as  of  course,  irrespective  of  the  sufficiency  of 
the  plea.8  Now,  however,  the  equity  rules  provide  that  "  if, 
upon  an  issue,  the  facts  stated  in  the  plea  be  determined  for  the 
defendant,  they  shall  avail  him  as  far  as  in  law  and  equity  they 
ought  to  avail  him."  9  Under  this  rule,  it  has  been  held  that  after 
a  replication  has  been  filed  and  testimony  taken,  the  court  may, 
without  examining  the  testimony,  overrule  the  plea  for  insuffi- 
ciency and  allow  the  defendant  to  answer.10  If,  however,  the 
truth  of  a  plea  upon  which  issue  has  been  joined  is  not  estab- 
lished, the  bill  cannot  before  answer  be  dismissed  for  want  of 
equity.11  Leave  to  withdraw  the  replication  and  amend  or  to  set 
down  the  plea  for  argument  may  under  special  circumstances  be 
obtained.12  By  replying  to  a  plea,  objections  to  its  form  or  for  a 
failure  to  support  it  by  answer  are  waived.13 

§  143.  General  Remarks  upon  Pleas.  —  In  conclusion,  it  may  be 
remarked  that  the  cautious  practitioner  will  act  wisely  in  eschew- 
ing the  use  of  pleas,  unless  he  desires  to  plead  matter  in  abate- 
ment, or  in  extraordinary  cases.  For  it  is  as  true  now  as  in  the 
time  of  Beames,  that  the  subject  of  pleas  in  equity  is  one  "  con- 
cerning which  so  much  still  remains  to  be  elucidated,  that  it  may 
be  said  of  them,  maxima  pars  eorum  quae  scimus  est  minima  eorum 
quae  ignoramus.'1''  1 

6  Mr.  Justice  Bradley  in  Kennedy  v.  10  Matthews  v.  Balance  &  G.  Manuf. 
Creswell,  101  U.  S.  641,  644.  Co.,  2  Fed.  R.  232.     But  see  Myers  v. 

7  In  the  language  of  Chief  Justice  Dorr,  13  Blatchf.  22  ;  Theberath  v.  Rub- 
Taney,  in  Poultney  v.  City  of  La  Fayette,  ber  &  Celluloid  Harness  Trimming  Co., 
12  Pet.  472,  474.  5  Bann.  &  A.  584  ;  Cottle  v.  Krementz,  25 

8  Hughes   v.   Blake,    6   Wheat.    453 ;  Fed.  R.  494. 

s.   c.    1   Mason,   515 ;    Rhode    Island  v.  n  Farley  v.  Kittson,  120  U.  S.  303. 

Massachusetts,  14  Pet.  210,  257  ;  Myers  12  Cottle  v.  Krementz,  25  Fed.  R.  404 ; 

v.  Dorr,  13   Blatchf.   22;    Theberath  v.  Hughes  v.  Blake,    6    Wheat.   453,   473  j 

Rubber  &  Celluloid  Harness  Trimming  Rules  29  and  35. 

Co.,  5  Bann.  &  A.  584  ;  Cottle  v.  Krementz,  13  Stead's  Executors  u.Course,  4  Cranch, 

25  Fed.  R.  494 ;  Birdseye  v.  Heilner,  26  Fed.  403  ;  Farley  v.  Kittson,  120  U.  S.  303. 

R.  147  ;  Bean  v.  Clark,  30  Fed.  R.  225.  §  143.   *  Beames  on  Pleas,  61. 

9  Rule  33.     But  see  Myers  v.  Dorr,  13 
Blatchf.  22. 


§  144.]        PLEADING  DEFENSES  IN  AN  ANSWER.  211 


CHAPTER   X. 

ANSWERS    AND   DISCLAIMERS. 

§  144.  Pleading  Defenses  in  an  Answer. —  An  answer  in  equity 
serves  two  purposes,  the  setting  up  of  the  defenses  to  the  suit, 
and  discovery.  It  cannot  ordinarily  pray  relief  against  the  com- 
plainant, and  never  against  a  co-defendant.1  If  a  defendant 
desires  such  relief  he  must  ordinarily  file  a  cross-bill.2  The  de- 
fendant is  entitled  in  all  cases  by  answer  to  insist  upon  all  matters 
of  defense  (not  being  matters  of  abatement,  or  to  the  character  of 
the  parties,  or  matters  of  form),  in  bar  of  or  to  the  merits  of  the 
bill,  of  which  he  may  be  entitled  to  avail  himself  by  a  plea  in 
bar.3  An  answer  may  contain  defenses  which  have  been  pre- 
viously raised  by  plea  or  demurrer  and  overruled.4  Facts  that 
have  occurred  since  the  filing  of  the  bill  may  be  pleaded  in  an 
answer.5  The  defenses  must  not  be  inconsistent  with  each  other.6 
If  so,  it  seems,  that  both  will  be  disregarded,7  unless  the  incon- 
sistent allegations  are  trifling,  when  they  may  be  treated  as  sur- 
plusage.8 It  is  not  considered  inconsistent  for  a  defendant  both 
to  deny  the  complainant's  title  and  to  allege  that  he  has  waived 
a  right  which  he  claims  under  it.9  The  defense  of  a  license  from 
the  plaintiff  to  commit  the  acts  complained  of  is,  in  the  absence 
of  special  covenants  or  recitals  in  the  license,  not  inconsistent  with 
other  defenses  impugning  the  validity  of  complainant's  patent.10 

§  144.   !  Ford  v.  Douglas,  5  How.  143  ;  6  Chapman  v.  School  District  No.  1, 

Hubbard    v.   Turner,    2    McLean,    519;  Deady,  108,  115 ;  Jesus  College  v.  C.ibbs, 

Morgan  v.  Tipton,  3  McLean,  339  ;  Chapin  1  Y.  &  C.  145,  147;   Leech  r.  Bailey,  6 

v.  Walker,  6  Fed.  R.  794;  s.  c.  2  Mc-  Price,  504;   Daniell's  Ch.   Pr.  (5th  Am. 

Crary,  175.  ed.),  714. 

2  See  chapter  XIII.,  Cross-Bills.  7  Jesus  College   v.  Gibbs,  1  Y.  &  C. 

8  Rule  39.  145;  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  714. 

*  Crawford   v.  The  William   Ponn,  3  8  Jenkinson  v.  Royston,  5  Price,  49G, 

Wash.  484  ;  Burnley  v.  Town  of  Jefferson-  510;    Daniell's   Ch.    Pr.    (5th    Am.    ed.) 

villi-,  3  McLean,  336;  Storms  v.  Kansas  714. 

Pacific  Ry.  Co.,  5  Dill.  486  ;  Rhode  Is-  9  Carte  v.  Ball,  3  Atk.  496,  499  ;  Dan- 
land  v.  Massachusetts,  14  Pet.  210.  iell's  Ch.  Pr.  (5th  Am.  ed.)  714. 

5  Earl  of  Leicester  v.  Perry,  1  Brown  10  National   Manuf.   Co.  v.  Meyers,  7 

Ch.  C.  305 ;  Turner  v.  Robinson,  1  Sim.  &  Fed.  R.  355. 
S.  3. 


212  ANSWERS   AND   DISCLAIMERS.  [CHAP.  X. 

The  defenses  must  be  pleaded  with  sufficient  certainty  ; n  although 
it  seems  that  the  same  degree  of  certainty  is  not  required  in  an 
answer  as  in  a  bill,12  or  a  plea.13  It  has  been  said  that  "  the 
respondent  cannot  set  up  as  a  defense  that  if  complainant's 
patent  be  so  construed  as  to  cover  the  machine  made  and  sold  by 
him,  then  the  machine  embraced  in  said  patent  was  known  and 
used  prior  to  the  invention  thereof  by  the  patentee."14  An  aver- 
ment that  a  patent  "  was  obtained  upon  false  and  fraudulent 
representations  by  the  plaintiffs,  or  some  of  them,  made  to  the 
commissioner  of  patents,  and  is  wholly  void  at  law,"  is  also  too 
uncertain  to  be  sufficient  to  constitute  a  defense.15  The  general 
rule  is  that  no  affirmative  defense  can  be  proved  unless  it  has 
been  set  up  in  the  answer.16  In  a  suit  to  restrain  the  infringe- 
ment of  a  patent,  a  license  is  an  affirmative  defense.17  It  has 
been  said  that,  if  a  defendant  states  in  his  answer  certain  facts  as 
evidence  of  a  particular  case,  which  he  represents  to  be  the  con- 
sequence of  those  facts,  and  upon  which  he  rests  his  defense,  he 
is  not  permitted  afterwards  to  make  use  of  the  same  facts,  for  the 
purpose  of  establishing  a  different  defense  from  that  to  which,  by 
his  answer,  he  has  drawn  the  plaintiff's  attention.18  Thus  it  has 
been  said  that  where  fraud  is  set  up  in  the  answer  "  the  party 
making  the  charge,  if  it  is  denied  in  a  proper  pleading,  will  be 
confined  to  that  issue."  19 

§  145.  Defenses  peculiar  to  Patent  Cases.  —  The  Revised  Statutes 
provide  that  the  defendant  to  a  suit  in  equity  for  relief  against 
an  alleged  infringement  of  a  patent  may  set  up  in  his  answer  any 
one  or  more  of  the  following  defenses,  and  give  notice  therein  that 
he  will  offer  proof  of  the  same :  "  First,  that  for  the  purpose  of 
deceiving  the  public  the  description  and  specification  filed  by  the 
patentee  in  the  Patent  Office  was  made  to  contain  less  than  the 
whole  truth  relative  to  his  invention  or  discovery,  or  more  than 
is  necessary  to  produce  the  desired  effect ;  or,  second,  that  he  had 

"  Graham  v.  Mason,  4  Cliff.  88;  Arm-  ling,  3  C.  E.  Green  (18  N.  J.  Eq.),  132  ; 

strong  v.  Lear,  8  Pet.  52.  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  712  ;  Black 

i2  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  714  v.  Thorne,  10  Blatchf.  66,  84;  Sperry  v. 

18  Maury  v.  Mason,  8  Porter  (Ala.),  213,  Erie  Ry.  Co.,  6  Blatchf.  425. 

228.  17  Watson  v.  Smith,  7  Fed.  R.  350. 

i*  Graham  v.  Mason,  4  Cliff.  88.  i8  Langdell's  Eq.  PI.  §  79  ;  Bennett  v. 

15  Clark  v.  Scott,  5  Fisher,  245.  Neale,  Wightwick,  324. 

16  Stanley  v.  Robinson,  1  Russ.  &  M.  J9  French  v.  Shoemaker,  14  Wall.  314, 
527  ;    Cummings    v.    Coleman,    7   Rich.  335.     See  §  70. 

(S.  C.)  Eq.  509,  520;    Burnham   v.  Dal- 


§  145.]       DEFENSES  PECULIAR  TO  PATENT  CASES.  213 

surreptitiously  or  unjustly  obtained  the  patent  for  that  which  was 
in  fact  invented  by  another,  who  was  using  reasonable  diligence 
in  adapting  and  perfecting  the  same ;  or,  third,  that  it  had  been 
patented  or  described  in  some  printed  publication  prior  to  his 
supposed  invention  or  discovery  thereof ;  or,  fourth,  that  he  was 
not  the  originator  and  first  inventor  or  discoverer  of  any  material 
and  substantial  part  of  the  thing  patented ;  or,  fifth,  that  it  had 
been  in  public  use  or  on  sale  in  this  country  for  more  than  two 
years  before  his  application  for  a  patent,  or  had  been  abandoned 
to  the  public.  And  in  notices  as  to  proof  of  previous  invention, 
knowledge,  or  use  of  the  thing  patented,  the  defendant  shall  state 
the  names  of  patentees  and  the  elates  of  their  patents,  and  when 
granted,  and  the  names  and  residences  of  the  persons  alleged  to 
have  invented,  or  to  have  had  the  prior  knowledge  of  the  thing 
patented,  and  where  and  by  whom  it  had  been  used ;  and  if  any 
one  or  more  of  the  special  matters  alleged  shall  be  found  for  the 
defendant,  a  decree  shall  be  entered  in  his  favor  with  costs."  * 
Under  this  statute,  it  has  been  held  that  no  evidence  can  be 
admitted  in  support  of  any  of  these  defenses,  unless  it  has  been 
properly  pleaded  and  the  requisite  notice  has  been  given  to  the 
complainant ; 2  but  that  the  respondent,  after  pleading  these 
defenses  or  some  of  them,  with  the  names  of  such  of  the  persons 
therein  referred  to  as  he  then  knows,  may  also  plead  a  general ' 
allegation,  "that  the  same  had  been  previously  invented  and 
known  and  used  by  many  other  persons,  whose  names  are  un- 
known to  the  respondent,  which,  when  known,  the  respondent 
prays  leave  to  insert  and  set  forth  in  the  answer."  3  Upon  the 
subsequent  discovery  of  any  such  persons,  testimony  concerning 
them  may  be  taken,  and  leave  obtained  from  the  court  to  insert 
their  names  in  the  answer  by  amendment  nunc  pro  tunc.  An 
order  to  this  effect  may  be  obtained  before  or  after  the  testimony 
has  been  taken.4  It  seems  that  when  a  previous  patent  has  not 
been  referred  to  in  an  answer,  such  patent  may  still  be  proved,  as 
evidence  of  a  prior  use  of  the  invention,  which  has  been  j)roperly 

§  145.  i  U.  S.  R.  S.  §  4920.  42  ;  Williams  v.  Boston  &  A.  R.  R.  Co.,  17 

2  Teese  v.  Huntingdon,  23   How.  2;  Blatchf.  21  j  Decker  v.  Grote,  10  Blatchf. 

Agawam   Co.   v.   Jordan,   7   Wall.   583 ;  331. 

Blanchard  v.  Putnam,  8  Wall.  420  ;  Bates  3  Roemer  v.  Simon,  05  U.  S.  214,  220  ; 

v.  Coe,  98 'XL  S.  31 ;  Pitts  v.  Edmonds,  2  Brown  v.  Hall,  6  Blatchf.  405. 

Fisher,  52,  54  ;  Salamander  Co.  v.  Haven,  *  Roemer  v.  Simon,  95  U.  S.  214,  220; 

3  Dill.  131 ;  Jennings  v.  Pierce,  15  Blatchf.  Brown  v.  Hall,  G  Blatchf.  405. 


214  ANSWERS  AND   DISCLAIMERS.  [CHAP.  X. 

pleaded,5  to  show  the  state  of  the  art  at  the  date  of  the  com- 
plainant's alleged  invention.6  It  is  unsettled  whether  the  defense 
of  insufficient  description  can  be  set  up  without  alleging  an 
intent  to  deceive  the  public."  It  has  been  said  concerning  the 
defense  of  want  of  novelty:  "Where  the  thing  patented  is  an 
entirety,  consisting  of  a  separate  device  or  of  a  single  combina- 
tion of  old  elements  incapable  of  division  or  separate  use,  the 
respondent  cannot  make  good  the  defense  in  question  by  proving 
that  a  part  of  the  entire  invention  is  found  in  one  prior  patent, 
printed  publication,  or  machine,  and  another  part  in  another, 
and  so  on  indefinitely,  and  from  the  whole  or  any  given  number 
expect  the  court  to  determine  the  issue  of  novelty  adversely  to 
the  complainant."  8  "  Defenses  of  the  kind,  if  the  thing  patented 
is  an  entirety,  incapable  of  division  or  of  separate  use,  must  be 
addressed  to  the  invention,  and  not  to  a  part  of  it,  or  to  one  or 
more  claims  of  the  patent,  if  less  than  the  entire  invention. 
More  than  one  patent  may  be  included  in  one  suit,  and  more 
than  one  invention  may  be  secured  in  the  same  patent ;  in  which 
cases  the  several  defences  may  be  made  to  each  patent  in  the 
suit,  and  to  each  invention,  to  which  the  charge  of  infringement 
relates."  9  It  has  been  said  that  a  defense  charging  that  the  origi- 
nal patentee  "  fraudulently  and  surreptitiously  obtained  the 
•patent  for  that  which  he  well  knew  was  invented  by  another, 
unaccompanied  by  the  further  allegation  that  the  alleged  first 
inventor  was  at  the  time  using  reasonable  diligence  in  adapting 
and  perfecting  the  invention,  is  not  sufficient  to  defeat  the 
patent,  and  constitutes  no  defense  to  the  charge  of  infringe- 
ment." 10  The  question  whether  a  defendant  has  an  interest  in 
the  patent  which  is  the  foundation  of  the  bill,  and  whether  he 
has  a  license  to  use  such  patent,  cannot  be  considered  unless 
specifically  raised  b}T  plea  or  answer.11 

5  Atlantic  Works  «?.  Brady,  107  U.S.  8  Mr.  Justice  Clifford  in  Parks  v. 
192.  But  see  Parks  v.  Booth,  102  U.  S.  Booth,  102  U.  S.  96,  104 ;  citing  Bates  v. 
96,  105.  Coe,  98  U.  S.  81. 

6  American  Saddle  Co.  v.  Hogg,  1  9  Mr.  Justice  Clifford  in  Parks  v. 
Holmes,  133 ;  s.  c.  6  Fisher,  67  ;  Steven-  Booth,  102  U.  S.  96,  104,  105. 

son  v.  Magowan,  31  Fed.  R.  824.  19  Mr.  Justice  Clifford  in  Agawam  Co. 

1  Loom  Co.  v.  Higgins,  105  U.  S.  580,  v.  Jordan,  7  Wall.  583,  597. 

588,  589 ;  Grant  v  Raymond,  6  Pet.  218 ;  "  Puetz  v.  Bransford,  31  Federal  Re- 

Whittemore  v.  Cutter,  1  Gall.  429 ;  Low-  porter,  458. 
ell   !'.   Lewis,    1    Mason,    182 ;     Gray   v. 
James,  Pet.  C.  C.  394. 


§  146.]      ADMISSIONS  AND  DENIALS  INDEPENDENT  OF  DISCOVEKY.    215 

§  146.  Admissions  and  Denials  independent  of  Discovery.  —  Ac- 
cording to  Professor  Langdell,  "  If  the  defendant  has  no  affirma- 
tive defense,  the  answer  need  contain  nothing  but  discovery, 
unless  the  defendant  proposes  to  offer  a  line  of  evidence  in  dis- 
proof of  the  bill  which  may  take  the  plaintiff  by  surprise ;  in 
which  case  it  will  be  prudent  to  indicate  the  nature  of  such  evi- 
dence in  the  answer.  This  should  be  done  also  whenever  it  is 
at  all  doubtful  whether  the  evidence  establishes  an  affirmative 
defence  or  is  in  denial  of  the  bill."  2  Although  the  weight  of 
authority  is  in  support  of  the  rule  that  a  failure  to  deny  an  alle- 
gation in  the  bill  does  not  operate  as  an  admission  of  its  truth, 
provided  some  answer  is  made,2  it  is  more  prudent  and  is  cus- 
tomary, even  when  an  answer  under  oath  is  waived,  for  the 
defendant  to  deny  or  admit  every  allegation  in  the  bill  ;  and  out 
of  abundant  caution  a  general  traverse  denying  the  unlawful 
combination  charged  in  the  bill,  and  all  other  matters  therein 
contained,  is  still  often  inserted  after  the  specific  denials.3  The 
statement  that  the  respondent  believes  an  allegation  to  be  true  is 
equivalent  to  an  admission  ; 4  but  the  statement  that  he  has  no 
knowledge  upon  the  subject  seems  to  be  equivalent  to  a  denial,5 
although,  if  full  discovery  be  required,  it  is  subject  to  exception 
for  insufficiency.6  The  denial  of  a  conclusion  of  law  is  of  no 
effect.7  Thus,  when  the  bill  alleged  that  the  defendant  executed 
and  delivered  a  deed,  a  denial  by  the  defendant  of  its  delivery, 
accompanied  by  an  admission  that  he  made  the  deed  and  placed 
it  upon  record,  is  equivalent  to  an  admission  of  its  delivery.8 
There  is  no  need  of  a  denial  of  the  common  confederacy  clause 
unless  accompanied  by  special  charges  of  combination.9  When 
defendants  avoided  answering  specific  interrogatories  concerning 
a  charged  infringement,  but  merely  denied  the  use  of  any  ma- 

§  146.   i  Langdell's  Eq.  PI.  §  79.  °  Kittredge  v.  Claremont  Bank,  1  W. 

-  Young   i'.    Grundy,   6   Cranch,    51  ;  &  M.  244. 

Brown  j;.  Pierce,  7  Wall.  205,  211;  Brooks  7  Adams    v.    Adams,   21    "Wall.   185; 

v.  Byam,  1  Story,  296,  302  ;  Rule  61.     But  Union   Mutual  Ins.    Co.   v.  Commercial 

see  Commercial  Mutual  Marine  Ins.  Co.  Mutual   Marine   Ins.   Co.,  2   Curt.  524; 

v.  Union  Mutual  Ins.  Co.,  19  How.  318,  s.  c.  on  appeal,  as  Commercial  Mutual 

323 ;    Agawam    Co.   v.  Jordan,  7   Wall.  Marine   Ins.  Co.   v.  Union   Mutual   Ins. 

583,  609  ;    Webb  v.  Powers,  2  W.  &  M.  Co.  19  How.  318,  319. 

497,510;  Meyers  v.  Busby,  32  Fed.  R.G70.  8  Adams  v.  Adams,  21  Wall.  185. 

8  See  Story's  Eq.  PI.  §  870.  9  Story's  Eq,  PI.  §§  30  with  note,  and 

4  Brooks  v.  Byam,  1  Story,  296,  311.  856  ;  Rule  32. 

s  Brown  v.  Pierce,  7  Wall.  205,  212  ; 
Brooks  i'.  Byam,  1  Story,  296. 


216  ANSWERS   AND   DISCLAIMERS.  [CHAP.  X. 

chinery  "  in  violation  and  infringement  of  any  rights  of  the  plain- 
tiff, or  that  they  are  using,  or  have  made,  or  sold,  or  used  any 
machines  not  protected  or  covered  by  the  proviso  in  the  act  of 
Congress,"  it  seems  that  they  thereby  presumptively  admit  in- 
fringement.10 An  admission  in  an  answer  that  the  defendants  had 
made  locks  of  the  kind  described  in  the  patent  sued  upon,  "  is 
satisfied,  by  assuming  that  the  smallest  number  of  locks  were  made 
consistent  with  the  use  of  that  word  in  the  plural,  and  with  the 
use  by  the  defendants  of  any  part  of  the  patent  which  is  valid."  u 
An  admission  that  a  deed  bears  a  certain  date  does  not  estop  the 
respondent  from  showing  that  it  was  fraudulently  antedated.12 

§  147.  Impertinence  and  Scandal.  —  An  answer  should  contain 
no  impertinence  or  scandal.1  What  constitute  scandal  and  imper- 
tinence has  been  explained  in  the  chapter  on  Bills.2  Usually 
nothing  is  considered  scandalous  which  is  relevant  or  responsive 
to  the  allegations  of  the  bill.3  But  in  an  English  case  brought 
by  a  clergyman,  where  the  defendant  included  in  a  schedule  of 
accounts  a  charge  for  money  paid  by  him  for  an  order  of  filiation 
of  a  bastard  made  upon  the  plaintiff,  the  court  held  the  item, 
although  relevant,  a  proper  subject  of  exception,  because  the 
mode  of  bringing  it  forward  was  intended  to  drive  the  plaintiff 
out  of  his  parish.4  It  may  be  doubted  whether  so  much  respect 
for  the  cloth  would  be  shown  by  an  American  court.  An 
allegation  that  a  previous  decree  was  made  "  without  a  full 
reading  of  the  proofs  in  the  cause,  or  a  careful  consideration  of 
the  briefs  of  the  counsel  filed  therein,"  and  not  "  after  full  con- 
sideration," is  not  scandalous  ;  for  it  contains  no  imputation  upon 
the  court.5  "  Exceptions  for  impertinence  are  only  allowed 
when  it  is  apparent  that  the  matter  excepted  to  is  not  material  or 
relevant,  or  is  stated  with  needless  prolixity.  If  it  may  be  mate- 
rial, the  exception  will  not  be  allowed,  as  that  would  leave  the 
defendant  without  remedy,  but  the  allegations  excepted  to  will 

10  Agawam  Co.  v.  Jordan,  7  Wall.  583,         2  Sec  §  68. 

609.  3  Peck  v.  Peck,  Mosely,  45 ;   Woods 

11  Mr.  Justice  Miller  in  Jones  v.  More-  v.  Morrell,  1  J.  Ch.  (N.  Y.)  103,  106 ; 
head,  1  Wall.  155,  165.  But  compare  Fisher  v.  Owen,  L.  R.  8  Ch.  D.  645,  653 ; 
Troy  Iron  &  Nail  Factory  v.  Corning,  6  Story's  Eq.  PI.  §  862. 

Blatchf .  328,  336,  337.  4  Attorney-General  v.  Hewit,  in  Chanc. 

12  Holbrook  v.  Worcester  Bank,  2  Curt.  July,  1801 ;  cited  in  Cooper's  Eq.  PI.  319 ; 
244.  Story's  Eq.  PI.  §  862. 

§  147.   >  Story's  Eq.  PI.  §§  861-863  ;         6  Miller  v.  Buchanan,  5  Fed.  R.  366. 
Langdon  v.  Goddard,  3  Story,  13. 


§  148.]  DISCOVERY.  217 

be  allowed  to  remain  in  the  answer,  and  the  effect  thereof,  if 
found  to  be  true,  determined  on  the  final  hearing." 6  It  has 
been  held  that  a  short  sentence  inserted  out  of  abundant  caution 
will  not  be  expunged  as  impertinent.7  Neither  is  new  matter 
not  responsive  to  the  bill,  setting  up  an  insufficient  defense,  the 
proper  subject  of  an  exception  for  impertinence  ; 8  although  such 
matter  has  been  expunged  by  motion.9  A  demurrer  to  an  answer 
is  not  permitted.10  Exceptions  to  answers  for  scandal  and  imper- 
tinence are  taken  and  disposed  of  in  substantially  the  same  man- 
ner as  exceptions  to  bills  for  the  same  reasons.11  Exceptions  for 
impertinence  should  be  filed  and  disponed  of  before  exceptions 
for  insufficiency  are  filed.12 

§  148.  Discovery.  —  Discovery,  or  answer  under  oath,  which 
was  formerly  one  of  the  principal  grounds  of  equitable  juris- 
diction, is  now  of  little  practical  importance.  For  the  statutes 
of  the  United  States,1  as  well  as  those  of  all  of  the  individual 
members  of  the  American  Union  with  which  the  writer  has 
any  acquaintance,  allow  the  full  benefits  of  discovery  to  be  ob- 
tained by  the  oral  examination  of  any  party  or  person  otherwise 
interested  in  the  cause  on  trial.  Moreover,  a  recent  amendment 
to  the  equity  rules  provides  that,  "  if  the  complainant,  in  his 
bill,  shall  waive  an  answer  under  oath,  or  shall  only  require  an 
answer  under  oath  with  regard  to  certain  specified  interroga- 
tories, the  answer  of  the  defendant,  though  under  oath,  except 
such  part  thereof  as  shall  be  directly  responsive  to  such  inter- 
rogatories, shall  not  be  evidence  in  his  favor,  unless  the  cause  be 
set  down  for  hearing  on  bill  and  answer  only ;  but  may  never- 
theless be  used  as  an  affidavit,  with  the  same  effect  as  heretofore 
upon  a  motion  to  grant  or  dissolve  an  injunction,  or  on  any 
other  incidental  motion  in  the  cause ;  but  this  shall  not  prevent 
a  defendant  from  becoming  a  witness  in  his  own  behalf  under 
section  3  of  the  act  of  Congress  of  July  2,  1804."  2     (U.  S.  R.  S. 

6  Deady,  J.,   in   Chapman   v.    School  lf>  Crouch  v.  Korr,  38  Fed.  R.  549. 
District  No.  1,  Deady,  108,  110.  "  See  Rules  2(3  and  27  ;   Hood  v.  In- 

7  Desplaces  v.  Goris,  1  Edward's  Ch.  man,  4  J.  Ch.  (N.  Y.)  437;  Langdon  v. 
(N.  Y.)  350.  Goddard,  3  Story,  13  ;  §  68. 

8  Adams  v.  Bridgewater  Iron  Co.,  6  ^  Patriotic  Bank  v.  Bank  of  Washing- 
Fed.  R.  179.     But  see  Ford  v.  Douglas,  ton,  5  Cranch  C.  C.  602. 

6  How.  143,  165.  §  148.   *  U.  S.  R.  S.  §  858. 

9  Armstrong  v.  Chemical  National  2  Amendment  of  Decemher,  1871,  to 
Bank,  37  Fed.  R.  466  ;  Adams  v.  Bridge-  Rule  41.  See  Woodruff  v.  Dubuque  &  S. 
water  Iron  Co.,  6  Fed.  R.  179.  C.  R.  R.  Co.,  30  Fed.  R.  91. 


218  ANSWERS   AND   DISCLAIMERS.  [CHAP.  X. 

Sec.  858.)  Consequently,  an  answer  under  oath  is  now  usually 
waived  by  the  complainant.3  When  no  such  waiver  is  made, 
however,  the  old  rule  still  prevails ;  and  the  sworn  statement  by 
the  defendant  in  direct  response  to  an  allegation  in  the  bill  is 
deemed  to  be  true,  unless  contradicted  by  two  witnesses,  or  a 
single  witness  and  corroborating  circumstances.4  Irresponsive 
allegations  are  not  evidence.5  Neither  are  allegations  upon 
information  and  belief,6  nor  allegations  sworn  to  positively,  con- 
cerning facts  of  which  it  is  evident  that  the  respondent  can  have 
no  personal  knowledge.7  The  admissions  of  the  defendant  are 
binding  upon  him ;  and  unless  he  can  obtain  leave  to  amend  his 
answers  by  withdrawing  them,  he  cannot  disprove  them  at  the 
hearing.8  When  discovery  is  required,  the  defendant  must 
answer  every  allegation  in  the  bill  which  is  material  to  the  plain- 
tiff's case,  and  an  answer  admitting  which  would  not  expose  him 
to  a  penalty,  forfeiture,  or  criminal  prosecution,  or  expose  a 
privileged  communication.9  "  It  is  not  a  sufficient  foundation  of 
exception  that  a  fact  charged  in  a  bill  is  not  answered,  unless  the 
fact  is  material  and  might  contribute  to  support  the  equity  of  the 
plaintiff's  case,  and  induce  the  court  to  give  the  relief  sought  by 
the  bill." 10  The  former  practice  required  that  if  a  defendant 
submitted  to  answer,  he  must  in  general  answer  fully  ;  and  that 
he  could  usually  protect  himself  from  a  full  discovery  only  by  a 
plea  or  demurrer  to  the  objectionable  part  of  the  bill.11  Now, 
however,  the  Equity  Rules  provide  that  "  the  rule  that  if  a  de- 
fendant submits  to  answer  he  shall  answer  fully  to  all  the 
matters  of  the  bill,  shall  no  longer  apply  in  cases  where  he 
might  by  plea  protect  himself  from  such  answer  and  discovery. 
And  the  defendant  shall  be  entitled  in  all  cases  by  answer  to 
insist  upon  all  matters  of  defense  (not  being  matters  of  abate- 

3  See  Slessinger  v.  Buckingham,  17  9  Cranch,  153,  161;  Allen  v.  O'Donald, 
Fed.  R.  454,  456.  28  Fed.  R.  17. 

4  Clark's  Executors  v.  Van  Riemsdyk,  8  Gold  &  Silver  Ore  Separating  Co.  v. 
9  Cranch,  153,  160  ;  Union  Bank  of  U.  S.  Disintegrating  Ore  Co.,  6  Blatchf. 
Georgetown  v.  Geary,  5  Pet.  99,  110 ;  307,  310.  See  Troy  Iron  &  Nail  Factory 
Seitz    v.    Mitchell,   94    U.    S.   580,   582 ;  v.  Corning,  6  Blatchf.  328,  336. 

Vigel  v.  Hopp,  104  U.  S.  441  ;  Slessinger  9  Atwill  v.  Ferrett,  2  Blatchf.  39. 

v.  Buckingham,  17  Fed.  R.  454,  456.  10  Chief  Justice  Taney  in  Hardeman 

8  Sargent   v.   Earned,    2    Curt.    340 ;  v.  Harris,  7  How.  726. 

Seitz  v.  Mitchell,  94  U.  S.  580.  u  Hare  on  Discovery,  pp.  247,  296, 297 

6  Berry  v.  Sawyer.   19  Fed.  R.  286 ;  Story's   Eq.  PI.  §§   605,  606,   609,  816 
Allen  v.  O'Donald,  28  Fed.  R.  17.  Mazarredo  v.  Maitland,  3  Madd.  66,  72 

7  Clark's  Executors  v.  Van  Riemsdyk,     v.  Harrison,  4  Madd.  252. 


§  148.]  DISCOVERY.  219 

raent,  or  to  the  character  of  the  parties,  or  matters  of  form)  in 
bar  of  or  to  the  merits  of  the  bill,  of  which  he  may  be  entitled  to 
avail  himself  by  a  plea  in  bar ;  and  in  such  answer  he  shall  not 
be  compellable  to  answer  any  other  matters  than  he  would  be 
compellable  to  answer  and  discover  upon  filing  a  plea  in  bar  and 
an  answer  in  support  of  such  plea,  touching  the  matters  set  forth 
in  the  bill,  to  avoid  or  repel  the  bar  or  defense.  Thus,  for  ex- 
ample, a  bona  fide  purchaser  for  a  valuable  consideration 
without  notice,  may  set  up  that  defense  by  way  of  answer  instead 
of  plea,  and  shall  be  entitled  to  the  same  protection,  and  shall 
not  be  compellable  to  make  any  further  answer  or  discovery  of 
his  title  than  he  would  be  in  any  answer  in  support  of  such 
plea."  n  "A  defendant  shall  be  at  liberty,  by  answer,  to  decline 
answering  any  interrogatory,  or  part  of  an  interrogatory,  from 
answering  which  he  might  have  protected  himself  by  demurrer  ; 
and  he  shall  be  at  liberty  so  to  decline,  notwithstanding  he  shall 
answer  other  parts  of  the  bill  from  which  he  might  have  pro- 
tected himself  by  demurrer." 13  If  the  plaintiff  is  the  only 
person  who  can  enforce  a  penalty  or  forfeiture,  and  he  waives  it 
in  his  bill,  the  defendant  may  be  compelled  to  answer  disclosing 
his  liability  thereto.14  There  has  been  much  controversy  as  to 
whether  the  defendant  to  a  bill  demanding  an  account  can  be 
obliged  to  give  discovery  as  to  the  account  when  he  answers 
denying  the  equity  of  the  bill  and  the  complainant's  right  to  an 
account.15  The  better  opinion  seems  to  be  that  he  can.  Such 
is  the  doctrine  of  Professor  Langdell,16  and  of  the  last  English 
case  upon  the  subject.17  No  discovery  can  be  required  of  an 
infant,18  or  other  person  under  a  disability  ; 19  nor,  it  seems,  of  a 
corporation,20  or  a  public  officer  when  sued  in  his  official  ca- 
pacity.21    But  it  has  been  held  that,  although  a  corporation  can- 

12  Rule  39.  19  Micklethwaite  v. Atkinson,  1  Coll.  173. 

13  Rule  44.  20  Union  Bank  of  Georgetown  v.  Geary, 

14  Lord  Uxbridge  v.  Staveland,  1  Vos.  5  Pet.  99,  110;  Wallace  v.  Wallace, 
Sen.  56;  Atwill  v.  Ferrett,  2  Blatchf.  Halst.  (N.  J.)  Dig.  173;  Smith  v.  St. 
39.  Louis  Mutual  Life  Ins.  Co.,  2  Tenn.  Ch. 

15  The  authorities  have  been  well  col-  599  ;  Burpee  v.  First  National  Bank,  5 
lected  by  Chancellor  Cooper  in  French  v.  Biss.  405.  But  see  Kittredge  v.  Clare- 
Rainey,  2  Tenn.  Ch.  640.  mont  Bank,  3  Story,  590 ;  s.  c.  1  W.  &  M. 

16  Langdell's  Eq.  PI.  §§  70-73.  245. 

17  Elmer  v.  Creasy,  L.  R.  9  Ch.  69,  71.  21  Davison  v.  Attorney-General,  5  Price, 

18  Copeland  v.  Wheeler,  4  Brown  Ch.  398,  note ;  Attorney-General  v.  Lamhirth, 
C.  256;  Lucas  ?:.  Lucas,  13  Ves.  274;  5  Price,  386,  398;  U.  S.  v.  McLaughlin, 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)  214.  24  Fed.  R.  823. 


220  ANSWERS   AND   DISCLAIMERS.  [CHAP.  X. 

not  be  compelled  to  answer  under  oath,  it  can  be  compelled  to 
answer,  and  to  answer  fully.22  The  defendant  must  answer  spe- 
cifically and  categorically,  distinguishing  between  matters  within 
his  personal  knowledge  and  those  within  his  information  and  be- 
lief.23 If  he  asserts  ignorance  as  to  any  matter,  he  must  aver  that 
he  is  ignorant  both  of  his  own  knowledge  and  as  to  information 
and  belief.24  He  cannot  deny  that  he  has  no  knowledge  as  to  a 
subject  which  the  bill  charges  as  a  personal  transaction  in  which 
he  took  part.25  This  last  rule,  it  has  been  said,  applies  to  officers 
of  corporations.26  If  new  officers  have  succeeded  those  in  office 
at  the  time  when  the  matters  charged  are  said  to  have  occurred, 
it  is  their  duty,  when  called  upon  for  discovery,  to  ascertain  the 
facts  by  searching  the  records  of  the  corporation  and  by  inquiry 
of  their  predecessors.27  It  has  been  said  that  "  a  corporate 
answer  should  be  made  by  the  principal  officer  of  the  corporation, 
who  should  be  able  to  admit  or  deny  the  facts  charged  and  inter- 
rogated about,  or  to  state  want  of  knowledge  clearly  and  truly 
as  a  reason  for  not  doing  it."28  It  is  insufficient  to  deny  any 
"  recollection  or  belief  as  to  a  transaction  in  which  the  defendant 
is  said  to  have  been  personally  engaged."29  "  The  defendant  in 
his  answer  must  state  the  facts  as  they  then  are."  30  But  where  a 
bill  charged  that  the  defendant  would  in  future  infringe  a  patent 
as  he  was  charged  to  have  done  before,  it  was  held  insufficient  for 
him  to  merely  deny  that  he  had  done  so  since  the  trial  of  an 
action  at  law  which  established  the  complainant's  rights.31  He 
had  also  to  answer  as  to  his  future  intentions.32  In  drawing  such 
an  answer,  it  is  usual  and  often  advantageous  to  interweave  the 
discovery  witli  a  narrative  of  the  transactions  from  the  defend- 
ant's point  of  view  in  a  continuous  statement,  so  that  it  will  be 
hard  for  the  plaintiff  to  read  as  evidence  the  defendant's  admis- 

22  Hale  v.  Continental  Life  Insurance  27  Kittredge  t\  Claremont  Bank,  1  W. 
Company,  16  Fed.  R.  718 ;  s.  c.  20  Fed.     &  M.  244. 

R  344.  -s  Wheeler,  J.,  in  Hale  v.  Continental 

23  Brooks  v.  Byam,  1  Story,  296 ;  Kit-    Life  Insurance  Co.,  16  Fed.  R.  718,  719. 
tredge  v.  Claremont  Bank,  3  Story,  596;         29  Taylor  v.  Luther,  2  Sumner,  228. 

s.  c.  1  W.  &  M.  244.  80  Sir  Thomas  Plumer,  V.  C,  in  Knight 

24  Brooks  v.  Byam,  1  Story,  296  ;  Kit-     v.  Matthews,  1  Madd.  566. 

tredge  v.  Claremont  Bank,  1  W.  &  M.  244.  31  Poppenhusen  v.  N.  Y.  Gutta-Percha 

25  Burpee  v.  First  National  Bank,  5  Comb  Co.,  4  Blatchf .  185 ;  s.  c.  2  Fisher, 
Biss.  405.  74. 

26  Burpee  v.  First  National  Bank,  5  32  Poppenhusen  v.  N.  Y.  Gutta-Percha 
Biss.  405  ;  Kittredge  v.  Claremont  Bank,  Comb  Co.,  4  Blatchf.  185  ;  s.  c.  2  Fisher, 
1  W.  &  M.  244.  74. 


§  150.]  FRAME  OF  ANSWER.  221 

sions  without  also  reading  the  latter's  own  explanation  and 
account  of  the  controversy. 

§  149.  Proceedings  to  compel  Answer.  —  The  defendant  must 
file  in  the  clerk's  office  on  the  rule-day  next  succeeding  that  of 
entering  his  appearance,  an  answer  to  so  much  of  the  bill  as  he 
does  not  cover  by  a  plea  or  demurrer.  In  default  thereof,  unless 
his  time  to  answer  has  been  enlarged,  for  cause  shown  by  a  judge 
of  the  court,  upon  motion  for  that  purpose,  the  bill  may  be 
taken  against  him  pro  confesso.1  When  a  plea  or  demurrer  is 
overruled,  with  leave  to  the  defendant  to  answer  within  a  certain 
time,  and  he  fails  so  to  do,  the  bill  may  then  also  be  taken  pro 
confesso.2  Otherwise  the  plaintiff,  if  he  requires  any  discovery  or 
answer  to  enable  him  to  obtain  a  proper  decree,  is  entitled  to  pro- 
cess of  attachment  against  the  defendant  to  compel  an  answer, 
and  the  defendant,  when  arrested  upon  such  process,  is  not  dis- 
charged therefrom  unless  upon  filing  his  answer,  or  otherwise 
complying  with  such  order  as  the  court  or  judge  thereof  may 
direct,  as  to  pleading  to  or  fully  answering  the  bill,  within  a 
period  to  be  fixed  by  the  court  or  judge,  and  undertaking  to 
speed  the  cause.3  If  the  attachment  is  returned  non  est  inventus, 
a  commission  of  rebellion  will  issue.4  If  this  proves  insufficient, 
it  will  be  followed  by  a  writ  of  sequestration.6 

§  150.  Frame  of  Answer.  —  An  answer  should  be  entitled  in  the 
cause,  so  as  to  agree  with  the  names  of  the  parties  as  they  appear 
in  the  bill  at  the  time  the  answer  is  filed.1  It  seems  that  the 
defendant  may  not  correct  or  alter  the  names  of  the  parties  as 
they  appear  in  the  bill,  and  that  if  there  is  a  mistake  he  must 
correct  it  in  the  part  following  the  title  of  the  cause  ;  thus, "  The 
answer  of  the  defendants,  the  Mayor,  Aldermen,  and  commonalty 
in  the  bill  called  the  Mayor,  Aldermen,  and  citizens  of  the  city 
of  New  York."2  The  answer  should  begin  substantially  thus: 
"  The  answer  of  John  Aber,  one  of  the  above-named  defendants, 
to  the  bill  of  complaint  of  the  above-named  plaintiff;  "  if  the  bill 
has  been  amended  after  answer,  "to  the  amended  bill  of  com- 

§  149.  i  Rule  18.    See  Chapter  VI.  6  Smith's  Ch.  Pr.  (2d  ed.  A.  D.  1837) 

2  Suydam  v.  Beals,  4  McLean,  12.  183-188. 

«  Rule  18.  §  150.   1  Daniell's   Ch.  Pr.   (5th   Am. 

«  Boudinot   v.  Symmes,  Wall.  C.   C.  ed.)731. 

139  ;  Smith's  Ch.  Pr.  (2d  ed.  A.  D.  1837),  2  Attorney-General  v.  Worcester  Cor- 

183-186.  poration,  1  C.  P.  Cooper,  18;  Daniell's 

Ch.  Pr.  (5th  Am.  ed.)  731. 


222  ANSWERS   AND   DISCLAIMERS.  [CHAP.  X. 

plaint."  3  If  two  or  more  defendants  join  in  the  same  answer,  it 
usually  begins,  "  The  joint  and  several  answer  ; " 4  unless  they  are 
husband  and  wife,  when  it  is  "  The  joint  answer  "  5  but  an  answer 
is  not  defective  if  put  in  by  several  as  a  joint  answer  merely.6 
When  discovery  is  required,  all  of  the  defendants  who  join  in  an 
answer  must  swear  to  the  same.7  When  the  same  solicitor  is 
employed  for  two  or  more  defendants,  and  separate  answers  are 
filed,  or  other  proceedings  had  by  two  or  more  defendants  sepa- 
rately, costs  are  allowed  for  such  separate  answers  or  other  pro- 
ceedings, unless  a  master,  upon  reference  to  him,  certifies  that 
such  separate  answers  and  other  proceedings  were  necessary  or 
proper,  and  ought  not  to  have  been  joined  together.8  A  female 
defendant  who  has  married  since  the  filing  of  the  bill  usually 
begins  :  "  The  answer  of  John  Aber  and  Anna,  his  wife,  lately 
in  the  bill  called  Anna  Brown,  spinster,"  or  widow,  as  the  case 
may  be.9  A  title,  "  The  several  answer  of  John  Peck,  Esq.,  one 
of  the  defendants  to  the  bill  of  complaint  of  Anna  Baines,  alias 
Green,  assuming  to  herself  the  name  of  Anna  Peck,  as  pretended 
wife  of  John  Peck,  Esq.,  deceased,  and  of  Anna  Maria  Green, 
assuming  to  herself  the  name  of  Anna  Maria  Peck,  as  daughter 
of  the  said  John  Peck,  Esq.,  deceased,"  was  held  scandalous.10 
An  answer  by  a  person  defending  by  guardian  or  next  friend 
should  state  that  fact:  "  James  Fifield  by  Edward  Jennings,  his 
next  friend."  When  an  answer  and  another  pleading  are  united, 
it  should  so  state :  "  The  demurrer,  plea,  and  answer  of,"  &e.n 
Next  followed  formerly  a  clause  reserving  to  the  defendant  any 
and  all  advantages  that  might  be  taken  by  exception  to  the  bill.12 
This  always  was  and  still  is  useless,13  although  many  practition- 
ers still  use  it.  Then  comes  the  substantive  part  of  the  answer, 
setting  up  the  matters  of  affirmative  defense  and  giving  the  dis- 
covery required.14  The  answer  usually  closes  with  a  general 
traverse  inserted  out  of  abundant  caution,  denying  the  unlawful 
combination  charged  in  the  bill,  and   all  other  matters  therein 


3  Daniell's  Ch  Pr.  (5th  Am.  ed.)  731  ;  9  Daniell's  Ch.  Pr.  (5th  Am.  ed.),  731. 

Rigby  v.  Rigby,  9  Beav.  311,  313.  10  Peck  v.  Peck,  Mosely,  45. 

*  Davis  v.  Davidson,  4  McLean,  136.  «  Daniell's  Ch.  Pr.  (5th  Am.  ed.),  731 

5  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  731.  12  Mitford's    PI.   ch.   2,   §    2,    part   3. 

6  Davis  v.  Davidson,  4  McLean,  136.  Story's  Eq.  PI.  §  870. 

7  Bailey   Washing    Machine    Co.    v.  m  Story's  Eq.  PI.  §  870  ;  Rules  39,  44. 
Young,  12  Blatchf.  199.  "  Mitford's  PL  ch.  2,  §  2,  part  3. 

8  Rule  62. 


§  151.]  SIGNATURE   AND    OATH   TO   ANSWER.  223 

contained.15  In  the  answers  of  infants  and  other  persons  under 
a  disability,  the  reservation  and  general  traverse  have  always 
been  deemed  properly  omitted.16  The  answer  in  such  cases  gen- 
erally is  that  the  infant  knows  nothing  of  the  matter,  and  there- 
fore neither  admits  nor  denies  the  charges,  but  leaves  the 
plaintiff  to  prove  them  as  he  shall  be  advised,  and  throws  himself 
on  the  protection  of  the  court.17  But  if  such  a  defendant  has 
any  substantive  defence,  he  should  plead  the  same.18 

§  151.  Signature  and  Oath  to  Answer.  —  An  answer  must  be 
signed  by  the  defendant  making  it ;  even,  it  seems,  when  an 
answer  under  oath  has  been  waived,1  unless  he  answer  by  guar- 
dian, when  the  latter  should  sign  it,2  or  unless  an  order  has  been 
obtained  dispensing  with  such  signature  on  account  of  the  de- 
fendant's absence,  or  for  some  other  reason.3  A  person  answering 
in  a  dual  capacity  need  sign  but  once.4  An  answer  by  a  cor- 
poration must  be  under  its  corporate  seal.5  In  such  a  case  it  is 
advisable  to  have  the  seal  attested  by  one  of  the  corporate  offi- 
cers.6 When  an  answer  is  made  without  oath,  the  signature  of 
the  defendant  should  also  be  attested.7  This  is  usually  done  by 
his  solicitor.8  The  answer,  unless  it  is  taken  by  commissioners, 
should  also  be  signed  by  counsel.9  Unless  an  answer  under  oath 
is  waived  in  the  bill,  the  defendant,  if  a  natural  person,  must 
swear;10  or,  "if  conscientiously  scrupulous  of  taking  an  oath,  in 
lieu  thereof  make  solemn  affirmation  to  the  truth  of  the  facts 
stated  by  him."  n  The  oath  or  affirmation  may  be  taken  before 
a  justice  or  judge  of  any  court  of  the  United  States,  or  before  a 
commissioner  appointed  by  a  Circuit  Court  to  take  testimony  or 
depositions,  or  before  a  master  in  chancery  appointed  by  a  Cir- 

15  Mitford's   PI.   ch.   2,   §   2,   part  3 ;  4  Anon  ;  2  J.  &  W.  553. 

Story's  Eq.  PI.  §  870.  5  Haight  v.  Proprietors  of  the  Morris 

16  Story's  Eq.  PI.  §  871.  Aqueduct,  4  Wash.  601,  605;   Darnell's 

17  Chancellor  Kent  in  Mills  v.  Dennis,     Ch.  Pr.  (5th  Am.  ed.)  785,  and  note  2. 

3  J.  Ch.  (N.  Y.),  367,  368.  6  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  735, 

18  Holden  v.  Hearn,  1  Beav.  445,  455 ;     note  2. 

Lane  v.  Hardwicke,  9  3eav.  148,  149.  7  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  738. 

§  151.  i  Story's  Eq.  PL  §  875;  Davis  v.  8  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  738. 

Davidson,  4  McLean,  136;  Bayley  v.  De  9  Davis  v.  Davidson,  4  McLean,  136; 

Walkiers,  10  Ves.  441 ;    Fulton   Bank  v.  Story's  Eq.  PI.  §  876. 

Beach,  2  Paige  (N.  Y.),  307;  Denison  v.  10  Fulton    Bank    v.    Beach,    2    Paige 

Bassford,  7  Paige  (N.  Y.),  370.  (N.  Y.),  307;  Daniell's  Ch.  Pr.  (5th  Am. 

2  Anon  ;  2  J.  &  W.  553  ;  Daniell's  Ch.  ed.)  735. 

Pr.  (5th  Am.  ed.)  733.  "  Rule  91.    See  TJ.  S.  R.  S.  §  5013. 

8  Story's  Eq.  PL  §  875  ;  v.  Lake, 

6  Ves.  171 ;  v.  Gwillim,  6  Ves.  285. 


224  ANSWERS  AND   DISCLAIMERS.  [CHAP.  X. 

cuit  Court,  or  before  a  judge  of  a  court  of  a  State  or  Territory  ; " 
or  before  a  notary  public,  when  acting  within  the  limits  of  their 
respective  jurisdictions.12  An  answer  can  be  verified  without  the 
United  States  before  commissioners  appointed  for  that  purpose  ; 13 
or  probably  before  any  secretary  of  legation  or  consular  officer  at 
the  post,  port,  place,  or  within  the  limits  of  his  legation,  consulate, 
or  commercial  agency.14  The  following  form  of  oath  or  affirmation 
is  given  by  Daniell  in  his  valuable  work  on  Chancery  Practice  : 
"  You  swear,  or  solemnly  affirm,  that  what  is  contained  in  this 
your  answer  (or  plea  and  answer),  as  far  as  concerns  your  own 
act  and  deed,  is  true  to  your  own  knowledge,  and  that  what 
relates  to  the  act  and  deed  of  any  other  person  or  persons,  you 
believe  to  be  true."  15  When  sworn  to  in  a  foreign  country,  it 
seems  that  it  must  be  "  administered  in  the  most  solemn  form 
observed,  by  the  laws  and.  usages "  of  that  country.16  Every 
alteration  and  interlineation  in  the  answer  should  be  authenti- 
cated by  the  initials  of  the  officer  who  administers  "  the  oath." 
When  the  verification  of  an  answer  is  in  the  form  of  an  affidavit, 
the  name  of  the  defendant  making  it  must  be  subscribed  at  the 
foot  of  the  affidavit.  When  in  the  form  of  a  certificate  of  the 
officer  administering  the  oath,  the  defendant's  name  should  be 
subscribed  at  the  foot  of  the  answer.17 

§  152.  Motions  to  take  Answers  off  the  File.  —  When  an  an- 
swer is  in  any  respect  irregular,1  or  is  filed,  by  a  person  not 
named  as  a  defendant  in  the  bill,2  or  is  filed  too  late,  it  may 
upon  the  plaintiff's  motion  be  taken  off  the  file.3  This  may  also 
be  done  when  the  paper  purporting  to  be  an  answer  is  so  evasive 
that  it  is  in  fact  no  answer.4  If  it  is  taken  off  the  file  for  an 
error  in  form,  the  court  may  allow  the  same  paper  to  be  corrected, 
and  then  filed  anew.5     By  setting  the  cause  down  for  a  hearing 


i2  Rule  59.   L.1876,  ch  304.  §152.   *  Bailey  "Washing  Machine  Co. 

13  Read  v.  Consequa,  4  Wash.  335.  v.  Young,  12  Blatchf .  199. 

14  U.  S.  R.  S.  §  1750.     But  see  Read  2  Putnam  v.  New  Albany,  4  Biss.  365, 
v.  Consequa,  4  Wash.  335.  367. 

15  2  Daniell's  Ch.  Pr.  ch.  15,  §  2,  p.  270;  3  Allen  v.  The  Mayor  and  Board  of 
Story's  Eq.  PI.  §  872,  note  4.  Education   of    New    York,    18    Blatchf. 

](i  Read  v.  Consequa,  4  Wash.  335.  239. 

17  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  743;  4  Tomkin  v.  Lethbridge,  9  Ves.  178; 

Hathaway  v.  Scott,  11   Paige   (N.  Y.),  Smith  v.  Searle,  14  Ves.  415. 

173,  176  ;   Pincers  v.  Robertson,  9  C.  E.  e  Bailey    Washing    Machine    Co.    v. 

Green  (24  N.  J.  Eq.),  348.  Young,  12  Blatchf.  199. 


§  153.]  EXCEPTIONS   FOR   INSUFFICIENCY.  225 

upon  bill  and  answer,  or  by  filing  exceptions  or  the  general  repli- 
cation, such  a  defect  would  be  waived.6 

§  153.  Exceptions  for  Insufficiency.  —  After  an  answer  is  filed 
on  any  rule-clay,  the  plaintiff  is  allowed  until  the  next  rule- 
day  to  file  in  the  clerk's  office  exceptions  thereto  for  insuffi- 
ciency, and  no  longer,  unless  a  longer  time  is  allowed  for  the 
purpose,  upon  cause  shown  to  the  court  or  a  judge  thereof; 
and  if  no  exceptions  are  filed  thereto  within  that  period,  the 
answer  is  deemed  and  taken  to  be  sufficient.1  The  time  may, 
however,  under  extraordinary  circumstances  be  abridged  by  the 
court.2  The  court  may,  to  avoid  delay,  allow  the  bill  to  be 
amended,  and  exceptions  to  be  filed  at  the  same  time  to  the 
answer  to  the  original  bill ;  requiring  the  defendant  to  at  once 
answer  the  amended  bill  and  the  exceptions.3  Exceptions  to  an 
answer  for  insufficiency  can  be  filed  after  exceptions  for  im- 
pertinence have  been  filed  and  disposed  of.4  It  seems  that,  if  a 
plea  is  ordered  to  stand  for  an  answer,  without  leave  to  except 
being  granted  in  the  order,  no  exception  for  insufficiency  can 
be  taken  to  so  much  of  the  answer  as  is  covered  by  the  plea;5 
and  that  where  an  answer  is  accompanied  by  a  demurrer  or  plea 
to  the  discovery,  and  the  complainant  excepts  to  the  answer 
before  the  other  pleading  has  been  disposed  of,  he  thereby 
admits  the  latter  to  be  good,  and,  if  set  down  for  argument,  it 
may  be  stricken  off  the  calendar.6  In  the  latter  case  leave  to 
withdraw  the  exceptions  may  be  given.7  No  exceptions  for 
insufficiency  can  be  filed  to  the  answer  of  an  infant  or  other 
person  under  a  disability.8  It  has  been  held  in  courts  not 
Federal,  that  when  an  answer  under  oath  is  waived,  no  ex- 
ceptions for  insufficiency  can  be  filed  to  the  answer.9  After 
exceptions  for  insufficiency  have  been  filed,  no  new  exceptions 
can   regularly  be  added;10   but   leave    to    amend  those    on  file 

6  Fulton    Bank    v.    Beach,    2    Paige  See,  however,  Darnell  v.  Reyny,  1  Vern. 

(N.  Y.),  307;   Glassington  v.  Thwaites,  344. 

2  Russell,  458,  461.  7  Boyd  v.  Mills,  13  Ves.  85. 

§  153.    '   Rule  61.  8  Copeland     v.    Wheeler,    4     Brown, 

2  Bead  v  Consequa,  4  Wash.  335.  Ch.  C.  256  ;  Lucas  v.  Lucas,  13  Ves.  274; 

8  Kittredge    v.    Claremont     Bank,    3  Micklctliwaite    ».    Atkinson,    1    Collyer, 

Story,  500.  173;  Daniell's  Oh.  Pr.  (5th  Am.  ed.)  169. 

4  Patriotic  Bank  v.  Bank  of  Washing-  9  M'Oormiek  v.  Chamberlin,  11  Paige 

ton,  5  Cranch  0.  C  602.  (N.  Y  ).  543 ;  Sheppard  v.  Akers,  1  Tenn. 

&  Sellon  v.  Lewen,  3  P.  Wms.  239.  Ch.  326. 

6  Brownell  v.  Curtis,  10  Paige  (N.  Y),  10  Partridge  v.  Haycraft,  11   Ves.  570, 

210,  211  ;  Mitford's  PI.  ch.  2,  §  2,  part  3.  575. 

15 


226  ANSWERS   AND   DISCLAIMERS.  [CHAP.  X. 

may  under  special  circumstances  be  obtained.11  When  defend- 
ants answer  separatelj',  separate  exceptions  should  be  filed 
to  each  .answer.12  Exceptions  to  an  answer  for  insufficiency 
must  be  in  writing,13  and  signed  by  counsel.14  It  seems  that 
(hey  must  specify  that  the  answer  excepted  to  is  an  answer  to 
the  bill.15  They  should  state  the  charges  in  the  bill  and  the  in- 
terrogatory applicable  thereto,  to  which  the  exceptionable  part 
of  the  answer  should  be  addressed,  and  then  state  the  terms 
of  that  part  of  the  answer  verbatim,  so  that  the  court,  without 
searching  the  bill  and  answer  throughout,  may  at  once  perceive 
the  ground  of  the  exception,  and  ascertain  its  sufficiency.16  An 
exception  to  an  answer,  "  because,  in  stating  in  the  said  answer 
what  he  has  been  informed  of  by  the  said  Byam,  he  does  not  say 
whether  he  actually  believes  the  same  to  be  true,"  was  said  to 
be  irregular  in  form.17  Such  an  objection,  or  any  irregularity  iu 
the  form  of  an  exception  for  insufficiency,  can  be  raised  by  a 
motion  to  take  the  exception  off  the  file.18  By  setting  the  ex- 
ception down  for  a  hearing,  an  objection  for  irregularity  is 
waived.19  Where  exceptions  have  been  filed  to  an  answer  for 
insufficiency,  within  the  period  prescribed,  if  the  defendant  do 
not  submit  to  the  same  and  file  an  amended  answer  on  the  next 
succeeding  rule-day,  the  plaintiff  should  forthwith  set  them  down 
for  a  hearing  on  the  next  succeeding  rule-day  thereafter,  before 
a  judge  of  the  court,  and  should  enter,  as  of  course,  in  the 
order-book  an  order  for  that  purpose  ;  and  if  he  do  not  so  set 
down  the  same  for  a  hearing,  the  exceptions  are  deemed  aban- 
doned, and  the  answer  deemed  sufficient ;  but  the  court  or  an}' 
judge  thereof,  may,  for  good  cause  shown,  enlarge  the  time  for 
filing  exceptions  or  for  answering  the  same,  in  his  discretion, 
upon  such  terms  as  he  may  deem  reasonable.20  It  has  been  said 
that  to  refer  such  exceptions  to  a  master  on  a  day  not  a  rule-day 
'•  is  to  do  what  is  not  authorized  by  the  rules,  and,  unless  af- 
firmed or  cured  ly  some  subsequent   action  of  the  court,  is  a 

"  Polder  v.  Bank  of  England.  10  Ves.         14  Yates  v.  Hardy,  Jacob,  223. 
284:  Bancroft  v.  Wentworth,  10  Ves.  285        15  Earl  of  Lichfield  v.  Bond,  5  Beav. 

v. ;  Northcote   v.  Northeote,   1   Dickens,  513. 
22.  16  Brooks  v.  Byam,  1  Story,  298,  303. 

'2  Sydolph    !••    Monkston,   2    Dickens,         "  Brooks  v.  Byam,  1  Story,  298,  303 
609.  18  Yates   v.   Hardy,  Jacob,   223;    Wil- 

13  Brooks  r.  Byam,  1  Story,  290  ;  Yates  liams  v.  Davies,  1  Sim.  &  S.  426. 
v.  Hardy,  Jacob,"  223  ;  Woods  v.  Morrell,         19  Brooks  v.  Byam,  1  Story,  298,  303. 
1  J.  Ch.  (N.  Y.)  103.  LU  Rule  63. 


§   153.]  EXCEPTIONS   FOR    INSUFFICIENCY.  227 

nullity."21  If,  at  the  hearing-,  the  exceptions  are  allowed,  the 
defendant  is  bound  to  put  in  a  full  and  complete  answer  thereto 
on  the  next  succeeding  rule-day ;  otherwise  the  plaintiff  will, 
as  of  course,  be  entitled  to  take  the  bill,  so  far  as  the  matter  of 
such  exceptions  is  concerned,  as  confessed,  or  at  his  election,  he 
may  have  a  writ  of  attachment  to  compel  the  defendant  to 
make  a  better  answer  to  the  matter  of  the  exceptions  ;  and  the 
defendant,  when  he  is  in  custody  upon  such  writ,  cannot  be 
discharged  therefrom  but  by  an  order  of  the  court,  or  of  a  judge 
thereof,  upon  his  putting  in  such  answer,  and  complying  with 
such  other  terms  as  the  court  or  judge  may  direct.22  If,  upon 
argument,  the  plaintiff's  exceptions  are  overruled,  or  the  answer 
adjudged  insufficient,  the  prevailing  party  is  entitled  to  all 
the  costs  thereby  occasioned,  unless  otherwise  directed  by  the 
court,  or  the  judge  thereof,  at  the  hearing  upon  the  excep- 
tions.23 An  exception  for  insufficiency  may  be  allowed  in  part 
and  overruled  in  part.24  Where  an  exception  for  insufficiency 
was  sustained,  and  a  further  answer  put  in,  which  the  plaintiff 
deemed  still  insufficient,  by  the  former  English  practice  he  had 
three  weeks  wherein  to  refer  the  same  to  a  master  upon  the 
old  exceptions  ;  otherwise  the  further  answer  was  deemed  suffi- 
cient.25 If  the  further  answer  was  found  insufficient,  the  de- 
fendant was  required  to  put  in  a  third  answer  ;  and  if  that  too 
was  found  insufficient,  lie  was  committed  to  the  Fleet,  and 
examined  upon  interrogatories.26  When  an  order  was  obtained 
after  answer,  allowing  the  plaintiff  to  amend  his  bill,  and  re- 
quiring the  defendant  to  answer  the  amendments  and  the  excep- 
tions to  the  answer  to  the  original  bill  together;  upon  such 
answer  the  plaintiff  could  only  file  new  exceptions  for  a  failure 
to  fully  answer  the  amendments.27  A  further  answer  is  in  every 
respect  similar  and  is  considered  a  part  of  the  original  answer. 
If,  therefore,  it  repeats  any  matter  contained  in  a  former  answer, 
the  repetition,  unless  it  varies  the  defence  in  point  of  substance, 
or  is  otherwise  necessary,  is  considered  as  impertinent.28 

21  La  Vega  v.  Lapsley,  1  Woods,  428,  »  Smith's  Ch.  Pr.  (2d  cd.  A.  D.  183G), 
432,  Woods,  J.  285,  286. 

22  Rule  Hi.  27  Partridge  v.  Haycraft,  11   Ves.  f.70, 

23  Rule  65.  581 ;  Smith's  Ch.  Pr.  (2d  ed.  A.  1).  ISM), 

24  East  India  Co.  v.  Campbell,  1  Ves.  2SG. 

Sen.  217;  Hoffmann  v.  Postill,  L.  R.  4  Ch.  2S  Story's  Eq.  PI.  §  868.  See  Gier 
App.  678.  v.  Gregg,  4  MeLean,  203. 

»  Smith's  Ch.  Pr.  (2d  ed.  18CG),  285. 


228  ANSWERS   AND    DISCLAIMERS.  [CHAP.  X. 

§  154.  Supplemental  Answers.  —  A  supplemental  answer  is 
filed  to  bring  to  the  attention  of  the  court  some  fact  which  was 
not  inserted  in  the  original  answer  through  mistake  or  igno- 
rance,1 or  which  has  occurred  subsequently  to  the  filing  of  the 
same.2  They  can  only  be  filed  by  leave  of  the  court,  which  may 
impose  terms  upon  the  applicant.3  The  rules  regulating  supple- 
mental answers  of  the  former  class  will  be  found  in  the  chapter 
upon  Amendments.  Those  of  the  second  class  have  been  little 
considered  in  the  books.  Their  functions  may  also  be  performed 
by  cross-bills.4 

§  155.  Disclaimers.  —  A  disclaimer  is  a  pleading  by  which  the 
defendant  renounces  all  claim  to  property  which  the  plaintiff 
seeks  in  his  bill  to  obtain.1  It  is  said  that  it  is  distinct  in  its 
substance  from  an  answer,  although  sometimes  confounded  with 
one.2  It  must,  however,  in  most  cases  be  accompanied  by  an 
answer,  for  where  a  defendant  has  been  made  a  party  by  mis- 
take, having  had  an  interest  with  which  he  has  parted,  the 
plaintiff  may  require  an  answer  sufficient  to  ascertain  what  the 
facts  are,  and  to  whom  he  has  transferred  his  interest.3  More- 
over, a  defendant,  although  he  may  disclaim  an  interest,  cannot 
disclaim  a  liability.4  The  only  cases  in  which  a  disclaimer  with- 
out an  answer  is  sufficient  seem  to  be  those  where  the  bill  simply 
alleges  that  the  defendant  claims  an  interest  in  the  property  in 
question  without  specifying  the  claim.5  Under  very  special  cir- 
cumstances, a  disclaimer  may  be  withdrawn,  and  an  answer  filed 
setting  up  a  claim.6  Where  a  disclaimer  is  made,  and  it  appears 
that  the  defendant  was  made  a  party  without  apparent  reason, 
the  bill  will  be  dismissed  with  costs.7  Otherwise,  a  decree  may 
be  entered  without  costs  against  the  defendant  and  all  claiming 
under  him  since  the  filing  of  the  bill.8  The  plaintiff  should  not 
file  a  replication  to  a  disclaimer  alone.9     When  the  disclaimer  is 

§  154.   *  Smith  v.  Babcock,  3  Sumner,  3  Story's  Eq.  PI.  §  838.    See  Ellsworth 

683;  Williams  v.  Gibbes,  20  How.  535;  v.  Curtis,  10  Paige  (N.  Y.),  105. 

Caster  v.  Wood,  Baldwin,  289  ;  Suydam  v.  4  Glassington  v.  Thwaites,  2  Russ.  458  ; 

Truesdale,  6  McLean,  459.  Graham   v.  Coape,  9   Simons,  93,   102  ; 

2  Kelsey  v.  Hobby,  16   Pet.  269,  277 ;  8.  c.  3  Myl.  &  Cr.  638. 

Talmageu.  Pell,  9  Paige  (N.Y.),  410, 413.         5  Story's  Eq.  PI.  §  838.     See  Graham  v. 

3  Smith  v.  Babcock,  3  Sumner,  583 ;  Coape,  9  Simons,  93,  102  ;  s.  c.  3  Myl. 
Caster  v.  Wood,  Baldwin,  289.  &  Cr.  638. 

4  Kelsey  v.  Hobby,  16  Pet.  269,  277.  6  Story's  Eq.  PI.  §  841. 
§  155.   1  Mounsey  v.  Burnham,  1  Hare,        i  Story's  Eq.  PI.  §  842. 

15.  8  Story's  Eq.  PI.  §  842. 

2  Story's  Eq.  PL  §  838.  9  Story's  Eq.  PI.  §  842. 


§   155.]  DISCLAIMERS.  229 

insufficient  it  may  be  stricken  off  the  file  upon  motion,  or  excep- 
tions to  it  for  insufficiency,  if  filed,  will  be  sustained.10  A  dis- 
claimer may  be  accompanied  by  a  plea,  answer,  or  demurrer,  or 
all  of  these,  provided  that  each  refers  to  a  separate  part  of  the 
bill.11  If  a  disclaimer  and  answer  by  the  same  defendant  are 
inconsistent,  the  matter  will  be  taken  most  strongly  against  the 
defendant  upon  the  disclaimer.12  The  following  is  a  form  of  a  mere 
disclaimer  :  "  The  disclaimer  of  Richard  Flagg,  the  defendant, 
to  the  bill  of  complaint  of  Robert  Aber,  complainant.  This 
defendant,  saving  and  reserving  to  himself  [here  follow  the 
usual  general  reservation  in  an  answer],  saith,  that  he  doth  not 
know  that  he,  this  defendant,  to  his  knowledge  and  belief,  ever 
had,  nor  did  he  claim  or  pretend  to  have,  nor  doth  he  now  claim, 
any  right,  title,  or  interest  of,  in,  or  to  the  estates  and  premises, 
situate  [describing  them],  in  the  said  complainant's  bill  set 
forth,  or  any  part  thereof ;  and  this  defendant  doth  disclaim  all 
right,  title,  and  interest  to  the  said  estate  and  premises  in 
[naming  their  situation],  in  the  said  complainant's  bill  men- 
tioned, and  every  part  thereof."  A  disclaimer  concludes  in  the 
same  way  as  an  answer.13 

10  Graham  v.  Coape,  9  Simons,  93, 102  ;        12  Mitford's  PI.  ch.  2,  §  2,  part  2. 
b.  c.  3  Myl.  &  Cr.  G38.  13  Story's  Eq.  PI.  §  844,  note  6. 

»  Story's  Eq.  PI.  §  839 ;  Mitford's  PI. 
ch.  2,  §  2,  part  3. 


230  REPLICATIONS.  [CHAP.  XI. 


CHAPTER   XL 

REPLICATIONS. 

§  156.  Definition  and  History  of  Replications.  —  A  replication 
is  a  pleading  by  which  the  plaintiff  puts  in  issue  the  matters 
pleaded  in  a  defendant's  answer  or  plea.  No  replication  can  be 
filed  to  a  demurrer.1  Replications  were  formerly  of  two  kinds, 
general  and  special.2  A  general  replication  consists  of  a  general 
denial  of  the  truth  of  the  defendant's  plea  or  answer,  and  of  the 
sufficiency  of  the  matter  alleged  therein  to  bar  the  plaintiff's  suit, 
together  with  an  assertion  of  the  truth  and  sufficiency  of  the  bill.3 
A  special  replication  sets  up  new  matter  in  avoidance  of  a  sub- 
stantive defence  contained  in  the  answer  or  plea.4  To  this  the 
defendant  was  obliged  to  file  a  rejoinder,  giving  the  discovery 
required  in  it.5  This  might  then  be  succeeded  by  a  sur- 
rejoinder and  a  rebutter.6  Special  replications  and  their  con- 
sequences were,  on  account  of  the  inconvenience  therefrom 
resulting,  almost  obsolete  by  the  time  of  Lord  Eldon.7  A 
special  replication  to  an  answer  is  forbidden  by  the  Equity 
Rules,  which  provide  that  "no  special  replication  to  any  answer 
shall  be  filed.  But  if  any  matter  alleged  in  the  answer  shall 
make  it  necessary  for  the  plaintiff  to  amend  his  bill,  he  may 
have  leave  to  amend  the  same  with  or  without  the  payment  of 
costs,  as  the  court  or  a  judge  thereof  may  in  his  discretion 
direct."  8  It  has  been  held,  that  a  special  replication  is  equally 
improper  to  a  plea.9  Allegations  of  new  matter  in  a  replication 
will  therefore  be  disregarded,  and  the  pleading,  if  allowed  to 
remain  upon  the  file,  will  be  given  no  more  effect  than  if  it  were 
simply  general.10     The  proper  course,  however,  is  for  the  de- 

§156.    l   Mason    v.    Hartford,    Provi-  6  Mitford's  PI.  ch.  3;    Story's  Eq.  PI. 

dence,  &  Fishkill  R.  R.  Co.,  10  Fed.  R.  §  878. 

334.  '  Mitford's  PI.  ch.  3 ;   Story's   Eq.  PI. 

2  Mitford's  PI.  ch.  3.  §  878. 

3  Story's  Eq.  PI.  §  878.  8  Rule  45. 

4  Story's  Eq.  PI.  §  878.  9  Mason    v.    Hartford,    Providence   & 
s  Mitford's  PI.  ch.  3;  Story's  Eq.  PI.  Fishkill  R.  R.  Co,  10  Fed.  R.  334. 

§  878.  l0  Vattier  v.  Hinde,   7  Pet.  252,  273; 


§  157.]  WHEN    A    REPLICATION    SHOULD    BE    FILED.  231 

fendant  to  move  the  special  replication  off  the  file.11  After  the 
disuse  in  England  of  special  replications,  it  was  customary  for 
the  plaintiff  to  sue  out  and  serve  upon  the  defendant  a  subpoena 
to  rejoin.12  This  practice  never  prevailed  generally  in  the 
United  States;13  and  the  Equity  Rules  provide  that  "in  all  cases 
where  the  general  replication  is  filed,  the  cause  shall  be  deemed 
to  all  intents  and  purposes  at  issue,  without  any  rejoinder  or 
other  pleading  on  either  side."  14 

§  157.  When  a  Replication  should  be  Filed.  —  The  equity  rules 
provide  that  if  the  plaintiff  does  not  reply  to  any  plea,  or  set  it 
down  for  argument  on  the  rule-day  when  the  same  is  filed,  or  on 
the  next  succeeding  rule-day,  he  shall  be  deemed  to  admit  the 
truth  and  sufficiency  thereof,  and  his  bill  shall  be  dismissed  as  of 
course,  unless  a  judge  of  the  court  shall  allow  him  further  time 
for  the  purpose.1  Whenever  the  answer  of  the  defendant  is  not 
excepted  to,  or  is  adjudged  or  deemed  sufficient,  the  plaintiff 
must  file  the  general  replication  thereto  on  or  before  the  next 
succeeding  rule-day  thereafter.2  If  the  plaintiff  omits  or  refuses 
to  file  such  replication  within  the  prescribed  period,  the  de- 
fendant is  entitled  to  an  order,  as  of  course,  for  a  dismissal  of  the 
suit ;  and  the  suit  is  thereupon  dismissed,  unless  the  court,  or  a 
judge  thereof,  shall,  upon  motion  for  cause  shown,  allow  a  repli- 
cation to  be  filed  nunc  pro  tunc,  the  plaintiff  submitting  to  speed 
the  cause  and  to  such  other  terms  as  may  be  directed.3  It  has 
been  held  that  such  an  order  may  be  entered  by  the  clerk  with- 
out any  application  to  the  judge.4  No  replication  need  or  should 
be  filed  when  the  cause  is  set  down  for  hearing  upon  bill  and 
answer.5  Where  there  are  several  defendants  a  replication 
should  be  filed  within  the  prescribed  time  after  one  of  them  has 
filed  an  answer  or  plea,  although  the  others  may  not  have  done 
so.6  It  is  the  safer  practice  to  file  a  separate  replication  after 
the  other  answers  have  come  in.7  The  court  may  grant  leave  to 
withdraw  a  replication,  and  amend,  or  have  the  cause  set  down 

Duponti  v.  Mussy,  4  Wash.  128 ;  Wren  v.  2  Ruie  6(j, 

Spencer  OptiealManuf.  Co.,  18  Off.  Gaz.  8  Rule  66. 

857.  4  Robinson  v.  Satterlee,  3  Saw.  101. 

11  Mason   v.    Hartford,   Providence   &  5  Reynolds  v. Crawfordsville  First  Nat. 
Fishkill  R.  R.  Co.,  10  Fed.  R.  334.  Rank.  112  U.  S.  405;  Gaines  v.  Agnelly, 

12  Story's  Eq.  PI.  §  879.  1  Woods,  238. 

18  Story's  Eq.  PI.  §  879,  note  5.  6  Coleman  v.  Martin,  0  Blatchf.  291. 

14  Rule  66.  T  See   Smith's   Ch.   Pr.    (2d    Eng.   ed.) 

§  157.   l  Rule  38.  vol.  i.  p.  336. 


232  EEPLICATIONS.  [CHAP.  XL 

for  a  hearing  upon  bill  and  answer.8  It  has  been  held  that  the 
pendency  of  a  motion  affecting  the  plea  or  answer  will  excuse 
the  plaintiff  from  replying  before  the  motion  has  been  decided.9 
Only  a  party  whose  plea  or  answer  has  received  no  proper  reply 
can  have  a  bill  dismissed  for  a  failure  to  comply  with  these  rules.10 
The  court  exercises  great  liberality  in  allowing  a  replication  to 
be  filed  nunc  pro  tunc,n  or  in  allowing  one  filed  too  late  to 
stand.12  The  taking  of  testimony  by  the  defendant,  or  any  other 
proceeding  taken  by  him  in  the  cause,  would  probably  be  held 
a  waiver  of  his  right  to  have  a  bill  dismissed  for  want  of  a  repli- 
cation.13 An  objection  upon  this  ground  cannot  be  raised  for 
the  first  time  upon  appeal.14  After  a  cause  has  been  heard  upon 
bill  and  answer  the  court  will  rarely  allow  a  replication  to  be 
filed.15 

§  158.  Effect  of  a  Replication.  —  The  complainant,  by  filing  a 
general  replication,  admits  the  sufficiency  as  regards  discovery,1 
but  not  as  a  defense,2  of  the  plea  or  answer  to  which  it  is  filed, 
and  denies  every  allegation  in  the  plea  or  answer  which  is  not 
directly  responsive  to  the  bill.3 

§  159.  Frame  of  a  Replication.  —  The  full  title  of  the  cause,  as 
it  stands  at  the  time  the  replication  is  filed,  must  be  set  forth  in 
the  heading  of  the  replication,  but  onby  the  names  of  such  of  the 
defendants  as  have  appeared  should  be  inserted  or  referred  to  in 
the  body.  If  a  defendant's  name  has  been  misspelt  by  the 
plaintiff,  and  such  defendant  has  corrected  the  same  by  his  an- 
swer, but  the  plaintiff  has  not  afterwards  amended  his  bill  with 
respect  to  such  name,  the  correction  should  be  shown  in  the 
title  of  the  replication ;  in  the  body  of  the  replication,  however, 

8  Rogers  v.  Goore,  17  Ves.  130;  Brown  Blatchf.  26;  Reynolds  i».  Crawfordsville 
v.  Ricketts,  2  J.  Cli.  (N.  Y.)   425;  Dan-     First  Nat.  Bank,  112  U.  S.  405. 

iell's  Oh.  Pr.  (2d  Am.  ed.)  479 ;  Ibid.  "  Clements  v.  Moore,  6  Wall.  299  ; 
(3d  Am.  ed.)  830.  Fretz  v.  Stover,  22  Wall.  198. 

9  Allis  v.  Stowell,  5  Fed.  R.  203.  15  Bullinger    v.    Mackey,    14   Blatchf. 

10  Chicago  &  Alton  R.  R.  Co.  v.  Union  355;  Peirce  v.  West's  Executors,  Pet 
Rolling  Mill  Co.,  109  U.  S.  702,  717.  C.  C.  351. 

11  Pierce  v.  West's  Executors,  Pet.  §  158.  >  Story's  Eq.  PI.  §  877  ;  Hughes 
C.  C.  351 ;    Sayles  v.  Erie  Railway  Co.,  v.  Blake,  6  Wheat.  453. 

2  N.  J.  L.  J.  212 ;  Fischer  v.  Hayes,  6  Fed.  2  Rule  33  ;    Matthews  v.  Balance  &  G. 

ft.   76;    s.  c.   19   Blatchf.   26;    Jones  v.  Manuf.    Co.,   2    Fed     R.    232.     But   see 

Brittan,  1  Woods,  607.  Myers  v.  Dorr,  13  Blatchf .  22 :  Theberath 

12  Fischer  v.  Hayes,  6  Fed.  R.  76  ;  s.  c.  v.  Ruhher  &  Celluloid  Harness  Trimming 
19  Blatchf.  26.  Co.,  5  Bann.  &  A.  584. 

13  Jones    v.   Brittan,   1    Woods,    667  ;  3  Humes  v.  Scruggs,  94  U.  S.  22. 
Fischer  v.  Hayes,  6  Fed.  R.  76  ;    s.  c.  19 


§  159.]  FRAME    OF   A   REPLICATION.  233 

the  correct  name  only  should  be  inserted.  When  any  defendant 
has  died  since  the  bill  was  filed,  the  words  "  since  deceased  " 
should  follow  his  name  in  the  title,  but  his  name  should  be 
omitted  in  the  body  of  the  replication.  If  the  plaintiff  joins 
issue  with  all  the  defendants  their  names  need  not  be  repeated 
in  the  body;  it  is  sufficient  in  such  case  to  designate  them  as 
"  all  the  defendants ; "  but  if  he  does  not  join  issue  with  all,  the 
names  of  the  defendants  must  be  set  out  in  the  body.1  If  the 
defendant  has  filed  both  a  plea  and  answer,  the  replication  should 
refer  to  both.2  The  body  of  a  general  replication  is  substantially 
as  follows  :  "  This  repliant,  saving  and  reserving  to  himself  all 
and  all  manner  of  advantage  of  exception,  which  may  be  had 
and  taken  to  the  manifold  errors,  uncertainties,  and  insufficiencies 
of  the  answer  of  the  said  defendants  for  replication  thereunto, 
saith,  that  he  doth  and  will  aver,  maintain,  and  prove  his  said 
bill  to  be  true,  certain,  and  sufficient  in  the  law  to  be  answered 
unto  by  the  said  defendants,  and  that  the  answer  of  the  said 
defendants  is  very  uncertain,  evasive,  and  insufficient  in  law,  to 
be  replied  unto  by  this  repliant ;  without  that,  that  any  other 
matter  or  thing  in  the  said  answer  contained,  material  or  effectual 
in  the  law  to  be  replied  unto,  and  not  herein  and  hereby  well 
and  sufficiently  replied  unto,  confessed  or  avoided,  traversed  or 
denied,  is  true  ;  all  which  matters  and  things  this  repliant  is 
ready  to  aver,  maintain,  and  prove  as  this  honorable  court  shall 
direct,  and  humbly  prays  as  in  and  by  his  said  bill  he  hath  al- 
ready prayed."3  A  replication  should  be  signed  by  the  plaintiff's 
solicitors.  The  signature  of  counsel  is  unnecessary.4  A  repli- 
cation, like  all  other  papers  in  a  suit  in  equity,  should  contain  no 
scandal  or  impertinence.  Proceedings  thereon  on  account  of  its 
containing  scandalous  or  impertinent  matter  are  similar  to  those 
upon  an  answer  of  that  character.  In  Queen  Elizabeth's  time, 
the  plaintiff,  for  putting  in  too  long  a  replication,  was  fined  ten 
pounds,  and  imprisoned,  and  a  hole  made  through  the  replication, 
which  was  hung  about  his  neck,  while  he  was  obliged  to  go  thus 
carrying  it  from  bar  to  bar.5 

§  159.  i  Daniell's  Ch.Pr.  (4th  Am.ed.)  *  Story's  Eq.  PL  §  881 ;  Darnell's  Cli. 

830,831.  Pr.  (4th  Am.  ed.)  830. 

8  Niccol  v.  Wiseman,  2  Vern.  40.  5  Mihvanl  v.  Welden,  8  Eliz.  li.  B.  fo. 

8  Story's  Eq.  PI.  §  878,  note  4.  678 ;  Tothill,  101. 


234  AMENDMENTS.  [CHAP.  XII. 


CHAPTER   XII. 

AMENDMENTS. 

§160.  Amendments  in  General.  —  "In  reference  to  amend- 
ments of  equity  pleadings  the  courts  have  found  it  impracticable 
to  lay  down  a  rule  that  would  govern  all  cases.  Their  allowance 
must,  at  every  stage  of  the  cause,  rest  in  the  discretion  of  the 
court ;  and  that  discretion  must  depend  largely  on  the  special 
circumstances  of  each  case.  It  may  be  said,  generally,  that  in 
passing  upon  applications  to  amend,  the  ends  of  justice  should 
never  be  sacrificed  to  technical  rules  of  practice.  Undoubtedly 
great  caution  should  be  exercised  where  the  application  comes 
after  the  litigation  has  continued  for  some  time,  or  when  the 
granting  of  it  would  cause  serious  inconvenience  or  expense  to 
the  opposite  side."  1  The  Revised  Statutes  provide  that  the  court 
"  may  at  any  time  permit  either  of  the  parties  to  amend  any  de- 
fect in  the  process  or  pleadings,  upon  such  conditions  as  it  shall, 
in  its  discretion  and  by  its  rules,  prescribe."  2  States,3  charities,4 
infants,5  idiots,  and  lunatics,  are  allowed  to  amend  in  cases  where 
courts  might  hesitate  to  grant  the  privilege  to  others. 

§  161.  When  Bills  can  be  Amended.  —  The  equity  rules  regu- 
late the  amendment  of  bills  as  follows:  "The  plaintiff  shall  be 
at  liberty,  as  a  matter  of  course,  and  without  payment  of  costs, 
to  amend  his  bill,  in  any  matters  whatsoever,  before  any  copy 
has  been  taken  out  of  the  clerk's  office,  and  in  any  small  matters 
afterwards,  such  as  filling  blanks,  correcting  errors  of  dates,  mis- 
nomer of  parties,  misdescription  of  premises,  clerical  errors,  and 
generally  in  matters  of  form.  But  if  he  amend  in  a  material 
point,  as  he  may  do  of  course,  after  a  copy  has  been  so  taken, 
before  any  answer  or  pica  or  demurrer  to  the  bill,  he  shall  pay 

§  1G0.    *  Mr.  Justice  Harlan  in  ITarrlin  4  President   of    St.    Mary   Magdalen's 

v.  Boyd,  113  U.  S.  750,  761.     See  Nellis  College  v.  Sibthorp,  1  Russ.  154. 

v.  Pennoek  Manuf.  Co.,  38  Fed.  R.  379.  6  Serle  v.  St.  Eloy,  2  P.  Wms.  386; 

2  U.  S.  R.  S.  §  954.  Pritchard    v.    Quinchant,   Ambler,   147  ; 

3  Rhode  Island    v.  Massachusetts,   13  Story's  Eq.  PI.  §§  59,  892. 
Pet.  23. 


§  161.]  WHEN   BILLS    CAN    BE    AMENDED.  235 

to  the  defendant  the  costs  occasioned  thereby,  and  shall,  without 
delay,  furnish  hira  with  a  fair  copy  thereof,  free  of  expense,  with 
suitable  references  to  the  places  where  the  same  are  to  be  in- 
serted. And  if  the  amendments  are  numerous,  he  shall  furnish 
in  like  manner  to  the  defendant  a  copy  of  the  whole  bill  as 
amended  ;  and  if  there  be  more  than  one  defendant,  a  copy  shall 
be  furnished  to  each  defendant  affected  thereby." 1  For  the 
purposes  of  this  rule,  an  answer  which  has  been  held  or  admitted 
to  be  insufficient  is,  it  seems,  considered  as  no  answer.2  It  has 
been  held  that,  after  an  insufficient  answer,  the  complainant  can- 
not amend  by  leaving'  out  the  defendant's  name,  and  thus  discon- 
tinuing the  suit  without  costs.3  After  an  answer,  or  plea,  or 
demurrer  is  put  in,  and  before  replication,  the  plaintiff  may,  upon 
motion  or  petition,  without  notice,  obtain  an  order  from  any 
judge  of  the  court  to  amend  his  bill  on  or  before  the  next  suc- 
ceeding rule-day,  upon  payment  of  costs  or  without  payment  of 
costs,  as  the  court  or  a  judge  thereof  may  in  his  discretion  direct. 
But  after  replication  filed,  the  plaintiff  shall  not  be  permitted  to 
withdraw  it  and  to  amend  his  bill,  except  upon  a  special  order 
of  a  judge  of  the  court,  upon  motion  or  petition,  after  due  notice 
to  the  other  party,  and  upon  proof  by  affidavit  that  the  same  is 
not  made  for  the  purpose  of  vexation  or  delay,  or  that  the  matter 
of  the  proposed  amendment  is  material,  and  could  not  with 
reasonable  diligence  have  been  sooner  introduced  into  the  bill, 
and  upon  the  plaintiff's  submitting  to  such  other  terms  as  may 
be  imposed  by  the  judge  for  speeding  the  cause.4  This  rule 
applies  only  where  leave  to  amend  is  asked  before  a  demurrer  or 
plea  is  allowed.5  "  If  the  plaintiff  so  obtaining  any  order  to 
amend  his  bill  after  answer,  or  plea,  or  demurrer,  or  after  repli- 
cation, shall  not  file  his  amendments  or  amended  bill,  as  the  case 
may  require,  in  the  clerk's  office  on  or  before  the  next  succeed- 
ing rule-day,  he  shall  be  considered  to  have  abandoned  the  same, 
and  the  cause  shall  proceed  as  if  no  application  for  any  amend- 
ment had  been  made."6  "  No  special  replication  to  any  answer 
shall  be  filed.  But  if  any  matter  alleged  in  the  answer  shall 
make  it  necessary  for  the  plaintiff  to  amend  his  bill,  he  may  have 

§  161.   !  Rule  28.  *  Rule  2t). 

2  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  47.3.  5  National  Bank  v.  Carpenter,  101  U.  S. 

See  Chase  v.  Dunham,  1  Paige  (N.  Y.),  572.  5G7,  568. 

;i  Chase  v.  Dunham,  1  Paige  (N.  Y.),  °  Kule  30. 
572. 


236  AMENDMENTS.  [CHAP.  XII. 

leave  to  amend  the  same  with  or  without  the  payment  of  costs, 
as  the  court  or  a  judge  thereof  may  in  his  discretion  direct."7 
Such  an  amendment  must  be  asked  for  whenever  the  plaintiff 
wishes  to  avoid  and  not  merely  deny  a  defense  in  the  answer 
which  has  not  been  anticipated  in  the  original  bill.8  Thus,  where 
an  answer  to  a  bill  for  an  injunction  against  the  infringement  of 
a  patent  set  up  a  license,  the  complainant  was  not  allowed  to 
prove  the  abandonment  of  the  license  because  the  bill  contained 
no  allegation  to  that  effect.9  If  upon  a  hearing  any  demurrer  or 
plea  is  allowed,  the  court  may,  in  its  discretion,  upon  motion  of 
the  plaintiff,  allow  him  to  amend  his  bill  upon  such  terms  as  it 
shall  deem  reasonable.10  When  the  plaintiff  wishes  to  amend 
the  bill  after  replication  by  the  addition  of  new  facts  or  charges, 
the  regular  practice  is  for  him  to  apply  for  leave  to  withdraw 
his  replication  and  amend.11  An  amendment  may  be  allowed  by 
the  court  at  any  time  even  after  a  final  decree.12 

§  162.  Form  and  Effect  of  Amendment  of  a  Bill. — "Wherever 
leave  to  amend  the  bill  is  granted,  it  is  more  proper  to  file  an 
amended  bill  than  to  interline  the  original  bill,  particularly  if 
some  of  the  defendants  had  before  answered  that  bill."  x  "  The 
rule  is  that  the  amended  bill  should  state  no  more  of  the  original 
bill  than  may  be  necessary  to  introduce,  and  to  make  intelligible, 
the  new  matter,  winch  should  alone  constitute  the  chief  subject 
of  the  bill.  The  reasons  for  this  rule  are  obvious.  Not  only  is 
the  incorporating  of  the  old  bill  into  the  amended  bill  unneces- 
sary, but  it  increases  the  costs,  and  exposes  the  defendants,  par- 
ticularly those  who  have  answered  the  original  bill,  to  the  trouble 
of  searching  out  and  separating  the  old  from  the  new  matter,  at 
the  peril  of  having  their  answer  excepted  to  if  any  mistake  should 
happen,  and  all  the  matter  of  the  amended  bill  should  not  be 
answered."2  Accordingly,  an  amended  bill  which  was  obnoxious 
to  this  rule  was  held  impertinent.3  It  is  the  better  practice  for 
the  counsel  to  sign  the  amendments,  if  they  are  not  as  to  matters 
of  mere  form.4     The  amendment  of  a  bill  is  usually  considered 

"  Pule  45.  §  162.   J  Peirce  v.  West's  Executor,  3 

8  Wilson   v.  Stolley,  4  McLean,  275 ;  Wash.  354,  355. 
Piatt  v.  Vattier,  9  Pet.  405.  2  Peirce  v.  West's  Executor,  3  Wash, 

a  Wilson  v.  Stolley,  4  McLean,  275.  354,  355. 

10  Rule  35.  3  Peirce  v.  West's  Executor,  3  Wash. 

"  Daniell's  Ch.  Pr.  (2<1  Am  .  ed  )  479.  354,  355. 
"  Tremaine  v.  Hitchcock,  23  Wall.  518.        *  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  313. 


§  163.]  WHAT   AMENDMENTS    TO   BILLS    MAY   BE   MADE.  237 

as  an  admission  of  the  sufficiency  of  the  answer  as  regards  dis- 
covery;5 but  an  amendment  which  merely  brings  in  a  new  de- 
fendant does  not  have  this  effect;6  and  the  court  may,  to  prevent 
delay,  entertain  a  motion  to  amend  a  bill  in  equity  at  the  same 
time  that  exceptions  to  the  answer  are  filed,  and  may  then  re- 
quire the  defendant  to  answer  the  amendments  and  the  excep- 
tions together.7  An  amendment  of  a  bill,  at  least  before  answer, 
will  not,  it  seems,  dissolve  an  injunction  previously  granted.8  It 
is,  however,  the  usual  and  the  safer  practice  to  have  a  clause 
inserted  in  the  order  stating  that  the  amendment  may  be  made 
without  prejudice  to  the  injunction.9  Unless  otherwise  provided 
in  the  order,  it  seems  that  an  amendment  of  a  bill  will  discharge 
all  contempt  proceedings  previously  instituted.10 

§  163.  What  Amendments  to  Bills  may  be  made.  —  "  An  amend- 
ment should  rarely  if  ever  be  permitted  where  it  would  materially 
change  the  very  substance  of  the  case  made  by  the  bill,  and  to 
which  the  parties  have  directed  their  proofs."  l  Thus,  where  a 
bill  was  filed  for  the  enforcement  of  a  judgment  lien  upon 
specified  property  filed  against  certain  specified  defendants,  an 
amendment  was  refused  after  a  hearing,  when  it  was  sought  to 
seek  discovery  and  relief  against  all  purchasers  of  both  the  prop- 
erty referred  to  in  the  original  bill  and  other  property  of  the 
judgment  debtor.2  A  bill  to  restrain  the  infringement  of  a 
patent  cannot  be  amended  so  as  to  allege  that  the  title  to  the 
patent  is  in  a  different  person  from  the  one  who  in  the  original 
bill  is  alleged  to  hold  it.3  But  such  a  bill  may  be  amended  so  as 
to  set  up  a  reissue  of  the  original  patent,  which  occurred  before 
the  original  bill  was  filed,  but  was  not  mentioned  therein.4  Such 
a  bill  may  also  be  amended  so  as  to  include  claims  for  damages 
and  profits  due  previous  owners  of  the  patent,  who  have  assigned 
them  to  the  complainant.5     The  allegation  that  certain  machines 

6  Smith's  Ch.  Pr.  (2d  Ens?,  erl  )  -307.  §  163.    >  Mr.  Justice  Harlan  in  Hardin 

6  Taylor  v.  Wrench,  9  Ves.  315.  v.  Boyd,  113  U.  S.  756,  761. 

7  Kittredge  v.  Claremont  Bank,  3  Story,  2  Snead  v.  McCoull,  12  How.  407,  422. 
590.  3  Goodyear  v.  Bourn,  3  Blatchf.  2HG. 

8  Read  v.  Consequa,  4  Wash.  174, 180 ;  See  Ilylands  v.  LaTouche,  2  Bligh,  586. 
Smith's  Ch.  Pr.  (2d  Eng.  ed.)  306;  Dan-  4  The   Tremolo    Patent,    Tremaine   v. 
iell's  Ch.  Pr.  (5th  Am.  ed.)  424,  425.  Hitchcock,  23  Wall.  618;  Reay  v.  Ray- 

9  Read  v.  Consequa,  4  Wash.  174 ;  Dan-  nor,  19  Fed.  R.  308;    Reay  v.   Berlin  & 
iell's  Ch.  Pr.  (5th  Am.  ed.)  424,  425.  Jones  Envelope  Co.,  30  Fed.  R.  448.    But 

lu  Smith's  Ch.  Pr.  (2d  Eng.  ed.)  305;    see  Jones  v.  Barker,  11  Fed.  R.  5'.t7. 
Gray  '.Campbell,!  R.&M.323;  Symonds         5  New  York  Grape  Su>rarCo.  >:  Buffalo 
v.  Duchess  of  Cumberland,  2  Cox,  411.         Grape  Sugar  Co.,  20  Fed.  R.  5U5. 


23S  AMENDMENTS.  [CHAP.  XII. 

alleged  to  be  used  in  violation  of  a  patent  were  infringements 
when  made,  ina}^  also  be  added  by  amendment.6  It  was  held  that 
a  bill  for  a  new  trial  of  an  action  for  the  price  of  stock  alleged 
to  have  been  sold  the  defendant,  could  not  be  changed  by 
amendment  so  as  to  charge  that  the  defendant  held  the  stock  in 
trust  for  the  complainant.7  It  is  unsettled  whether  a  bill  for 
discovery  can  be  amended  so  as  also  to  pray  relief.8  It  was  held 
that  a  bill  filed  against  persons  in  their  individual  capacity  cannot 
be  amended  so  as  to  sue  them  as  officers  of  a  corporation.9  A 
bill  filed  b}'  several  creditors  praying  the  sale  of  their  debtor's 
land  in  one  State,  and  the  satisfaction  of  their  claims  out  of  the 
proceeds  of  such  sale,  cannot  be  changed  by  amendment  so  as  to 
pray  relief  to  one  against  another  of  the  plaintiffs,  in  respect  to 
the  receipt  by  the  latter  of  the  proceeds  of  the  sale  of  other  land 
of  the  same  debtor  situated  in  another  State,  and  sold  under  a 
decree  in  another  suit  in  another  court.10  A  bill  by  the  Land 
Company  of  New  Mexico  to  enforce  an  executory  contract  by 
the  defendant  Smoot  for  the  sale  of  an  interest  in  land  of  which 
the  defendant  Elkins  had  the  legal  title,  and  which  it  was  alleged 
that  Smoot  was  about  to  assign  to  the  defendant  Butler  with 
Elkins's  connivance,  was  held  not  amendable  "  by  omitting  all 
the  parties  but  Elkins,  and  proceeding  against  him  upon  the 
theory  that  complainant  has  acquired  Smoot's  interest  by  an 
absolute  and  unconditional  transfer.''11  A  bill  to  set  aside  a 
sheriff's  sale  may  be  amended  so  as  to  add  a  tender  of  the  pur- 
chase-price and  a  prayer  for  a  redemption  of  property.12  A  bill 
to  set  aside  a  contract  for  the  sale  of  land  as  obtained  by  fraud 
may  be  amended  by  the  addition  of  an  alternative  pra}rer  for  the 
specific  performance  of  the  contract.13  A  bill  to  remove  a  cloud 
upon  the  title  to  land  may  be  amended  so  as  to  seek  the  enforce- 
ment of  trusts  relating  to  the  same  property.14     It  has  been  said, 

6  Reay  v.  Raynor,  19  Fed.  R.  308.  10  Smith  v.  Woolfolk,  115  U.  S.  143, 

7  Oglesby  v.  Attrill,  14  Fed.  R.  214.  148. 

8  See  Horsburg  v.  Baker,  1  Pet.  232  ;  H  Land  Co.  of  New  Mexico  v.  Elkins, 
Butterworth  v.  Bailey,  15  Ves.  358 ;   Hild-  20  Fed.  R.  545. 

yard  v.  Cressy,  3  Atk.  303;  Crow  v.  Tyr-         12  Graffam  r.  Burgess,  117  U.  S.  180. 
ell,   2    Madd.   397  ;    Jackson   v.    Strong,         13  Hardin  v.  Boyd,  113  U.  S.  756,  dis- 

1  McClel.  245;    Lonsada   v.  Templer,  2  tinguishing  Shields  v.  Barrow,  17  How. 

Russ.  565;  Daniell'a  Ch.  Pr.  (2d  Am.  ed.)  136. 
463-465.  u  Partee  v.  Thomas,  11  Fed.  R.  769. 

9  Tyler  t<.  Galloway,  13  Fed.  R.  477.  See  also  Neale  v.  Neales,  9  Wall.  1  ;  Bat- 
But  see  Womersley  v  Merritt,  L.  R.  4  Eq.  tie  v.  Mutual  Life  Ins.  Co.,  10  Blatchf. 
6U5.  417 ;  Burgess  v.  Graffam,  10  Fed.  R.  216. 


§  104]  ADDITION    OF   MATTER    SUBSEQUENT.  239 

that  where  the  bill  originally  sets  out  one  agreement  which  it 
seeks  to  enforce,  and  the  answer  admits  the  execution  of  another 
agreement  of  a  similar  character,  but  with  provisions  different 
from  those  alleged  in  the  bill,  the  plaintiff  may  amend,  abandon- 
ing the  agreement  first  pleaded  by  him,  and  obtain  the  enforce- 
ment of  that  admitted  by  the  defendant ;  but  that  he  cannot, 
while  still  praying  the  enforcement  of  the  agreement  as  set  out 
by  him,  amend  so  as  to  seek,  in  case  he  fail  in  proving  that,  an 
enforcement  of  the  one  admitted  in  the  answer.15  It  was  held 
that  a  creditor's  bill,  filed  to  obtain  the  appointment  of  a  receiver 
of  the  property  of  a  city,  and  the  application  by  him  of  its  assets 
to  the  satisfaction  of  its  debts,  could  not  be  amended  so  as  to 
seek  relief  against  a  receiver  and  back-tax  collector,  appointed 
by  a  subsequent  statute  of  the  State  to  collect  the  city's  assets.1*5 
Great  liberality  is  allowed  as  to  amendments  which  strike  out 
parties17  or  bring  in  new  parties,18  except  as  to  bills  for  discovery, 
to  which  in  England  no  new  parties  could  be  added.19  A  bill 
filed  by  a  married  woman  can  almost  always  be  amended  by  the 
addition  of  the  name  of  a  next  friend  when  necessary.20  A  bill 
filed  in  behalf  of  one's  self  and  others  may  be  amended  by  strik- 
ing out  the  invitation  to  others  to  join,  provided  none  of  them 
have  come  in;21  and  a  bill  filed  in  one's  own  name  may  be 
amended  by  the  addition  of  words  sufficient  to  make  it  a  bill  in 
behalf  of  a  class.22  A  bill  filed  against  a  defendant  as  executor 
may  be  amended,  so  as  to  charge  him  as  administrator  of  the 
same  person.23  In  an  English  case,  a  bill  in  behalf  of  a  charity 
was  changed  by  amendment  into  an  information.24 

§  164.  Amendment  by  Pleading  Matters  subsequent  to  the  Filing 
of  the  Bill.  —  The  general  rule  is  that  nothing  which  has  oc- 
curred since  the  filing  of  a  bill  can  be  added  to  it  by  amend- 
ment.1     Such    matters,    when    admissible,   should   ordinarily  be 

15  Linrlsay  v.  Lynch,  2  Sch.  &  Lef.  1,  9.     Good  v.  Blewitt,  13  Ves.  307,  401  ;  Attor- 

16  Meriwether  v.  Garrett,  102  U.  S.  472,     ney-General  t\  Newcombe,   14  Ves.  1.  6; 
&02-  Reese  River  Silver  Mining  Co.  r.  Atwell, 

«  Conolly  v.  Taylor,  2  Pet.  556  ;  Dwight  L.  R.  7.  Eq.  347. 

v.  Humphreys,  3  McLean,  101.  ^  Randolph  v.  Barrett,  16  Pet.  138. 

18  Fisher  v.  Rutherford,  Baldwin,  188;  24  President  of  St.  Mary  Magdalen  Col- 
Patterson  v.  Stapler,  7  Fed.  R.  210.  lege  v.  Sibthorp,  1  Russ.  154. 

19  Marquis  Cholmondeley  v.  Lord  Clin-  §  164.    »  Wray  v.  Hutchinson,  2  Mvl. 
ton,  2  Meri.  71.  &   K.   235;    Mason    ,-.    Hartford,   Provi- 

2J  Douglas  v.  Butler,  0  Fed.  R.  228.  dence,  &  Fishkil!  R   R.  Co.,  10  Fed.  I!. 

21  Yates  >:  Arden,  5  Cranch  C.  C.  526.       334;    Copen    v.    Flesher,    1    Bond,   440; 

22  Richmond   v.  Irons,  121    U.   S.  27;     Lyster  v.  Stickney,  12  Fed.  R.  G09. 


240  AMENDMENTS.  [CIIAP.  XII. 

introduced  by  a  supplemental  bill.2  It  was  held  incompetent  to 
amend  a  bill,  stating  that  certain  notes  and  mortgages  were 
executed  under  a  threat  by  the  defendant  that  he  would  kill  the 
complainant  if  they  were  not  executed,  and  paid  at  their  matur- 
ity, by  adding  the  allegation,  "  that  in  pursuance  of  such  threat 
the  defendant  did,  subsequently  to  the  commencement  of  this  suit, 
take  the  life  of  the  original  complainant."  3  Such  a  murder  does 
not  add  to  the  complainant's  cause  of  action,  although  it  might 
be  put  in  evidence  as  tending  to  prove  the  original  duress.4 
An  amendment  therefore  speaks  as  of  the  date  of  the  original 
bill  ;  and  an  amendment  alleging  the  requisite  difference  of 
citizenship  in  the  present  time  is  sufficient  to  establish  the 
jurisdiction  of  the  court.5  A  bill  may  perhaps  be  amended 
before  answer,  demurrer,  or  plea,  by  alleging  new  matter  that 
has  occurred  since  it  was  first  filed.6  And  it  has  been  held 
that  where  a  plaintiff  has,  at  the  time  of  filing  his  original  bill, 
an  inchoate  light,  to  perfect  which  a  formal  act  alone  is  ne- 
cessary, and  such  formal  act  is  not  performed  till  afterwards;  as 
where  an  executor  files  a  bill  before  probate,  and  subsequently 
proves  the  testament,7  or  the  next  of  kin  files  a  bill  to  protect 
the  personal  estate  of  an  intestate  and  subsequently  procures  her 
appointment  as  administratrix,8  or  a  foreign  administrator  files  a 
bill  before  obtaining  ancillary  letters  of  administration,  and  such 
letters  are  subsequently  issued  to  him;9  the  introduction  of 
the  fact  by  amendment  will  be  permitted.10  It  has  been  also 
held  in  England  that  the  *'  defendant,  when  he  puts  in  his  answer, 
must  state  the  facts  as  they  then  are  ;  and  if  circumstances 
are  then  introduced  in  the  answer  which  occurred  subsequent 
to  the  filing  of  the  bill,  the  plaintiff  must  be  allowed  to  make 
amendments  to  the  bill,  so  as  to  show  that  such  new  circum- 
stances mentioned  in  the  answer  are  not  of  the  color  he  repre- 


2  See  Chapter  XIV.  Wms.  348;  Bradford  v.  Felder,  2  M'Cord 

3  Lyster  v.  Stickney,  12  Fed.  R.  609,  (S.  C).  Ch.  170. 

610.  9  Swatzel     v.    Arnold,    Woolw.    383. 

4  Lyster  v.  Stickney,  12  Fed.  R.  609.  Contra,  Mason  v.   Hartford,   Providence, 

5  Birdsall  v.  Perego,  5  Blatchf.  251.  &  Fishkill  R.  R.  Co.,  10  Fed.  R.  304. 

6  Story's  Eq.  PI.  §  885  ;  Candler  v.  10  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  460, 
Pettit,  1  Paige  (N.  Y.),  168;  Ogden  v.  461;  Swatzel  v.  Arnold,  Woolw.  383; 
Gibbons,  Halst.  N.  J.  Dig.  172.  Humphreys   v.   Humphreys,   3  P.   Wms. 

7  Belloat  v.  Morse,  2  Hayw.  (N.  C)  348.  Contra,  Mason  v.  Hartford,  Provi- 
157;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  460.  dence,  &  Fishkill  R.  R.  Co.,  10  Fed.  R. 

8  Humphreys    v.    Humphreys,    3    P.  334. 


§  165.]  PROCEEDINGS   UPON   AN   AMENDED   BILL.  241 

sents  them,  and  so  as  to  obtain  a  complete  answer  as  to  such 
circumstances."  n 

§  165.  Proceedings  upon  an  Amended  Bill.  —  When  the  amend- 
ment merely  brings  in  new  parties  defendant,  they  alone  need  be 
served  with  a  new  subpoena.1  If,  however,  a  bill  is  substan- 
tially amended  by  the  addition  of  new  charges,  according  to 
the  English  practice  a  subpoena  to  answer  the  amendments  had 
to  be  sued  out  and  served  upon  all  the  defendants.2  Where  the 
bill  is  amended  before  answer  or  plea,  no  matter  how  trivial  the 
amendment  may  be,  the  defendant  may  demur  to  it,  although  a 
demurrer  to  the  original  bill  has  been  overruled.3  If,  however,  a 
defendant  has  answered  the  original  bill,  he  cannot,  without  obtain- 
ing leave  to  withdraw  his  first  answer,  demur,  plead,  or  answer  to 
any  more  than  the  new  matter ;  unless  the  amendments  virtually 
make  a  new  case.4  For  if  the  answer  which  still  remains  upon 
the  record  applies  to  any  part  of  the  amended  bill,  it  will  overrule 
a  general  demurrer.5  Where  the  amendments  seek  to  introduce 
new  matter  which  is  properly  the  subject  of  a  supplemental  bill, 
the  defendant  must  raise  that  objection  by  demurrer,6  plea,  or 
answer.7  Otherwise,  the  objection  will  be  waived.8  The  equity 
rules  provide,  that  "  In  any  case  where  an  amendment  shall  be 
made  after  answer  filed,  the  defendant  shall  put  in  a  new 
answer  or  supplemental  answer  on  or  before  the  next  succeeding 
rule-day  after  that  on  which  the  amendment,  or  amended  bill 
is  filed,  unless  the  time  is  enlarged  or  otherwise  ordered  by  a 
judge  of  the  court ;  and  upon  his  default,  the  like  proceedings 
may  be  had  as  in  cases  of  an  omission  to  put  in  an  answer."9  An 
answer  to  an  amended  bill  is  impertinent  if  it  contains  any 
matter  which  was  pleaded  in  the  answer  to  the  bill  before 
amendment.10  It  seems  to  have  been  the  English  rule  that  an 
answer  to  an  amended  bill  might  set  up  an  entirely  new  defense 
inconsistent  with  that  in  his  former  answer.11 

11  Sir  Thomas  Plumer,  V.  C,  in  Knight  Register,  33,  60;   Atkinson  v.  Han  way, 

v.  Matthews,  1  Madd.  566.  1  Cox  Eq.  360;  Ellice  v.   Goodson,  3  M. 

§  165.   l  Longworth  v.  Taylor,  1  Mc-  &  C.  653;  Ritchie  v.  Aylwin,  15  Ves.  79. 
Lean,  514  ;  Angerstein  v.  Clarke,  1  Ves.  5  Ellice  v.  Goodson,  3  M.  &  C.  653. 

Jr.  250;  Skeffington  v. ,  4  Ves.  66.  6  Brown  v.  Higden,  1  Atk.  291. 

2  Cooke  v.  Davies,  T.  &  R.  309 ;  Bram-  7  Wray  v.  Hutchinson,  2  M.  &  K.  235. 
ston  v.  Carter,  2  Simons,  458.  See  Ken-  8  Archbishop  of  York  v.  Stapleton,  2 
dall  v.  Beckett,  1  Russ.  152.  Atk.  136. 

3  Bos.inquet  v.  Marsham,  4   Simons,         9  Rule  46. 

573  ;  Bancroft  v.  Warden,  2  Dickens,  672.        10  Gier  v.  Gregg,  4  McLean,  202. 

*  Keene  v.  Wheatley,  9  American  Law        n  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  468; 

16 


242  AMENDMENTS.  [CHAP.  XII. 

§  166.  Amendments  of  Demurrers,  Pleas,  and  Replications.  —  The 
court  may  allow  a  demurrer  to  be  amended  as  to  matters  of  form,1 
and  also  in  substance  by  narrowing2  its  extent,  and  otherwise. 
When  a  substantial  amendment  of  a  demurrer  is  allowed,  it  is 
customary  to  give  the  plaintiff  leave  to  amend  his  bill  at  the  same 
time.3  An  amendment  of  a  plea,  except  as  to  a  matter  of  form,4 
is  less  frequently  allowed  ;  and  only  upon  an  application  in  which 
the  court  must  be  told  precisely  what  the  amendment  is  to  be, 
and  how  the  slip  happened  which  it  is  to  correct.5  In  such  a  case, 
the  defendant  is  usually  given  a  very  short  time  within  which 
to  amend.6  The  amendment  of  a  replication  will  almost  always 
be  allowed.7 

§  167.  Amendment  of  Answers.  —  The  equity  rule  affecting 
the  amendment  of  answers  is  as  follows :  "  After  an  answer  is 
put  in,  it  may  be  amended,  as  of  course,  in  any  matter  of  form, 
or  by  filling  up  a  blank,  or  correcting  a  date,  or  reference  to 
a  document,  or  other  small  matter,  and  be  resworn,  at  any  time 
before  a  replication  is  put  in,  or  the  cause  set  down  for  hearing 
upon  bill  and  answer.  But  after  replication,  or  such  setting 
down  for  hearing,  it  shall  not  be  amended  in  any  material 
matters,  as  by  adding  new  matters,  facts,  or  defenses,  or  quali- 
fying or  altering  the  original  statements,  except  by  special 
leave  of  the  court,  or  of  a  judge  thereof,  upon  motion  and  cause 
shown,  after  due  notice  to  the  adverse  party,  supported,  if  re- 
quired, by  affidavit ;  and  in  every  case  where  leave  is  so  granted, 
the  court  or  the  judge  granting  the  same  may,  in  his  discretion, 
require  that  the  same  be  separately  engrossed,  and  added  as  a 
distinct  amendment  to  the  original  answer,  so  as  to  be  distin- 
guishable therefrom."1  The  principles  upon  which  the  courts 
proceed  in  allowing  such  amendments  is  thus  stated  by  Judge 
Story.  "  In  mere  matters  of  form,  or  mistakes  of  dates,  or  ver- 
bal inaccuracies,  courts  of  equity  are  very  indulgent  in  allowing 
amendments.     But  when  application  is  made  to  amend  an  answer 

citing  Bolton  v.  Bolton,  MS.      See  also  207 ;  Atwill  v.  Ferrett,  2  Blatchford,  39, 

Trust  &  Fire  Insurance  Co  v.  Jenkins,  49. 

8  Paiire  (N.  Y.),  589.  *  U.  S.  R.  S.  §  954. 

§  166.   l  U.  S.  R.  S.  §  954.  5  Story's  Eq.  PI.  §  895.      See  Giant 

2  Gregg  v.  Legh,  4  Madd.  193,  207 ;  Powder  Co.  v.  Safety  Nitro  Powder  Co., 
Atwill  r.' Ferrett,  2  Blatchf.  39, 49  ;  Baker  19  Fed.  R.  509. 

>:  Mellish,   11  Ves.  70;    Story's  Eq.  PI.  6  Story's  Eq.  PI.  §  895. 

§  894.  t  DanielTs  Ch.  Pr.  (4th  Am.  ed.)  831. 

3  Gregg    v.  Legh,   4    Maddock,   193,  §  167.   »  Rule  GO. 


S  1671  AMENDMENT  OF  ANSWERS.  2-43 

v  -I 

in  material  facts,  or  to  change  essentially  the  grounds  taken  in  the 
original  answer,  courts  of  equity  are  exceedingly  slow  and  re- 
luctant in  acceding  to  it.  To  support  such  applications,  they  re- 
quire very  cogent  circumstances,  and  such  as  to  repel  the  notion 
of  any  attempt  of  the  party  to  evade  the  justice  of  the  cause, 
or  to  set  up  new  and  ingeniously  contrived  defenses  or  subter- 
fuges. When  the  object  is  to  let  in  new  facts  and  defenses 
wholly  dependent  upon  parol  evidence,  the  reluctance  of  the  court 
is  greatly  increased :  since  it  has  a  natural  tendency  to  encourage 
carelessness  and  indifference  in  making  answers,  and  leaves 
much  room  for  the  introduction  of  testimony  manufactured  for 
the  occasion.  But  when  the  new  facts  sought  to  be  introduced 
are  written  papers  or  documents,  which  have  been  omitted  by 
accident  or  mistake,  there  the  same  reason  does  not  apply  in 
its  full  force ;  for  such  papers  and  documents  cannot  be  made 
to  speak  a  different  language  from  that  which  originally  belonged 
to  them.  The  whole  matter  rests  in  the  sound  discretion  of 
the  court."2  "It  seems  to  me,  that,  before  any  court  of  equity 
should  allow  such  amended  answers,  it  should  be  perfectly  sat- 
isfied that  the  reasons  assigned  for  the  application  are  cogent 
and  satisfactory ;  that  the  mistakes  to  be  corrected,  or  the 
facts  to  be  added  are  made  highly  probable,  if  not  certain  ;  that 
they  are  material  to  the  merits  of  the  case  in  controversy ;  that 
the  party  has  not  been  guilty  of  gross  negligence  ;  and  that  the 
mistakes  have  been  ascertained,  and  the  new  facts  have  come  to 
the  knowledge  of  the  party,  since  the  original  answer  was  put 
in  and  sworn  to.  Where  the  party  relies  upon  new  facts  which 
have  come  to  his  knowledge  since  the  answer  was  put  in, 
or  where  it  is  manifest  that  he  has  been  taken  by  surprise,  or 
where  the  mistake  or  omission  is  manifestly  a  mere  inadvertence 
and  oversight,  there  is  generally  less  reason  to  object  to  the 
amendment,  than  there  is,  where  the  whole  bearing  of  the  facts  and 
evidence  must  have  been  well  known  before  the  answer  was 
put  in."3  An  amendment  of  an  answer  changing  the  character  of 
the  defense  will  rarely  be  allowed  after  the  court  has  rendered  an 
opinion  adverse  to  the  position  originally  taken  by  the  defendant.4 

2  Smith  v.  Babcock,  3  Sumner,  583,         4  Calloway  v.  Dobson,  1  Brock.  110. 
586.  See    Walden    v.   Bodley,    14   Pet.   150 ; 

3  Smith  v.  Babcock,  3  Sumner,  583,     Hamilton  v.  Nevada  G.  &   S.  Min.  Co., 
586.  33  Fed.  R.  562,  568. 


244  AMENDMENTS.  [CHAP.  XII. 

The  defendant  will  rarely  be  allowed  to  withdraw  an  admission 
which  he  has  made.5  Leave  to  amend  will  be  denied  when  the 
complainant  proves  by  affidavit  that  the  new  matter  sought  to 
be  introduced  is  false.6  Ordinarily,  leave  to  amend  an  answer 
will  be  denied  when  the  defendant  knew  of  the  facts  which 
he  wishes  to  introduce,  at  the  time  his  original  answer  was 
drawn  ; "  or  might  have  then  discovered  them  by  the  exercise 
of  reasonable  diligence.8  An  omission  due  to  a  mistake 
of  law  cannot  ordinarily  be  cured  by  amendment.9  The  court 
may  refuse  to  allow  an  amendment  Avhich  would  introduce  an 
unconscientious  defense,  such  as  the  statute  of  limitations,10 
the  statute  of  frauds,11  or  that  a  contract  made  by  a  com- 
plainant corporation  was  not  authorized  by  its  charter. 12  When 
the  proposed  amendment  is  trivial  the  answer  may  be  removed 
from  the  file,  altered,  resworn  to,  and  refiled  ; 13  but  if  it  is  of 
any  length,  it  is  customary  to  file  a  supplemental  answer  set- 
ting it  forth.14  Leave  to  withdraw  an  answer  and  demur  will 
very  rarely  be  granted.15 

§  168.  Practice  in  obtaining  Leave  to  Amend.  —  The  application 
for  leave  to  amend  must  be  in  writing,  stating  the  new  matter 
which  the  applicant  desires  to  introduce  by  amendment,  and 
must  be  supported  by  an  affidavit,  stating  the  reason  why  this 
matter  was  not  included  in  the  original  pleading.1  Where  the 
former  pleading  was  verified,  oath  must  be  made  to  the  truth 
of  the  proposed  amendments.2  Where  the  proposed  amendment 
consists  of  matters  disclosed  b}*  documentary  evidence,  the 
documents    themselves    must   be    produced,   if   possible.3      The 

5  Ruegles  v.  Eddy,  11  Blatchf.  524.  13  Bailey    Washing    Machine    Co.    v. 

«  Hicks  v.  Otto,  17  Fed.  R.  539.  Young,  12  Blatchf.  199. 

7  India  Rubber  Comb  Co.  v.  Phelps,  14  Dolder  ».  Bank  of  England,  10  Ves. 
8  Blatchf.  85;  Webster  Loom  Co.  v.  Hig-  284,  285;  Daniell's  Ch.  Pr.  (5th  Am.  ed.) 
gins,  13  Blatchf.  349 ;  Cross  v.  Morgan,  779,  780. 

6  Fed.  R.  241 ;  Suydam  v.  Truesdale,  6  15  Phelps  v.  Elliott,  30  Fed.  R.  396. 

McLean,  459.  §  168.   *  Snead  v.  M'Coull,  12   How. 

8  India  Rubber  Comb  Co.  w.  Plielps,  407,  422  ;  National  Bank  v.  Carpenter, 
8  Blatchf.  85;  Webster  Loom  Co.  v.  Hig-  101  U.  S.  567,  568;  Wells  v.  Wood,  10 
gins,  13  Blatchf.  349.  Ves.  401 ;  Nabob  of  the  Carnatic  v.  East 

9  Webster  Loom  Co.  v.  Higgins,  13  India  Co.,  1  Ves.  Jr.  374,  385;  Rodgers  v. 
Blatchf.  349;  Cross  v.  Morgan,  6  Fed.  R.  Rodgers,  1  Paige  (N.  Y.),  424;  Daniell's 
241.  Ch.  Pr.  (5th  Am.  ed.)  781. 

w  Cock  v.  Evans,  9  Yerg.  (Tenn.)  287.         2  Rodgers  v.  Rodgers,  1  Paige  (N.  Y.), 

"  Cook  v.  Bee,  2  Tenn.  Ch.  344.  424. 

12  Third  Avenue  Savings  Bank  v.  Di-  3  Churton  v.  Frewen,  L.  R.  1  Eq.  238; 

mock,  9  C.  E.  Green  (24  N.  J.  Eq.),  26.  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  781. 


§  168.  PKACTICE   IN   OBTAINING   LEAVE   TO   AMEND.  245 

court  may  impose  terms  as  a  condition  precedent  to  amendment  ; 
for  example,  a  disclosure  of  the  names  of  the  witnesses  whom 
the  party  expects  to  call  to  prove  the  new  matter.4  The  order 
allowing  the  amendment  should  state  the  new  matter  to  be  in- 
serted.5 If  the  amended  pleading  states  new  matter  not  allowed 
by  the  order,  it  may  be  stricken  from  the  file.6  The  court  upon 
appeal  will  disregard  an  amended  pleading  filed  without  leave,7 
unless  the  other  party  has  treated  it  as  valid,  when  he  cannot 
raise  the  objection  for  the  first  time  upon  appeal.8  When  both 
parties  have  conducted  the  case  as  if  the  pleadings  contained 
certain  allegations  therein  omitted,  an  amendment  inserting 
such  allegations  may  be  allowed  at  almost  any  stage  of  the 
cause.9  It  seems  that  the  Supreme  Court  will  not  reverse  a 
decree  for  an  error  in  refusing  permission  to  make  an  amend- 
ment ; 10  certainly  not  unless  the  proposed  amendment  appears 
upon  the  record.11  It  has  been  said  that  a  decree  will  not  be 
reversed  for  an  error  in  allowing  an  amendment.12  The  Su- 
preme Court  will  not  allow  a  pleading  to  be  amended  upon 
appeal  to  it,13  except  by  consent.14  It  has  been  held,  however, 
that  a  Circuit  Court  has  power  to  allow  an  amendment  to  a 
pleading  when  hearing  an  appeal  from  a  District  Court.15 

4  Caster  v.  Wood,  1  Bald.  289.  »  National    Bank    v.    Carpenter,   101 

6  Daniell's  Ch  Pr.  (5th  Am.  ed.)  410.  U.  S.  567,  508. 

6  Strange  v.  Collins,  2  V.  &  B.  163, 107.  12  Chapman  v.  Barney,  129  U.  S.  077, 

7  Terry  v.  McLure,  103  U.  S.  442.  081. 

8  Clements  v.  Moore,  6  Wall.  299.  «  Pacific  Railroad  of  Mo.  v.  Ketchum, 

9  Tremaine    v.    Hitchcock,   23   Wall.  95  U.  S.  1. 

518.  14  Kennedy  v.  Georgia  State  Bank,  8 

10  National    Bank    v.    Carpenter,   101     How.  580. 
U.  S.  507,  568.  is  Warren  v.  Moody,  9  Fed.  R.  673. 


246  CROSS-BILLS.  [CHAP.  XIII. 


CHAPTER   XIII. 

CROSS-BILLS. 

§  169.  Definition  and  Origin  of  Cross-Bills.  —  A  d'OSS-bill  is  a  bill 
filed  by  a  defendant  in  a  suit  in  equity  against  one  or  more  of  the 
other  parties,  in  order  to  obtain  either  discovery  of  facts  in  aid 
of  his  defence,  or  complete  relief  to  all  parties  as  to  the  mat- 
ters charged  in  the  original  bill.1  It  was  borrowed,  through  the 
canon,  from  the  reeonventio  of  the  later  civil  law;2  and  from 
it  is  derived  the  counterclaim  of  code-pleading.3  It  was  origi- 
nally used  chiefly  for  the  purpose  of  set-off  and  discovery, 
which  modern  statutory  enactments  have  made  it  now  possible 
to  obtain  in  a  simpler  way. 

§  170.  When  a  Cross-Bill  should  be  Filed.  —  A  cross-bill  is  filed  by 
one  of  the  defendants  to  a  suit  in  equity  either  for  his  own  pro- 
tection, or  by  the  direction  of  the  court  at  the  hearing,  if  the 
pleadings  are  then  insufficient  to  enable  it  to  determine  the 
rights  of  all  the  parties  sufficiently  to  make  a  complete  decree 
upon  the  subject-matter  of  the  suit.1  This  latter  case  most 
frequently  happens  when  persons  in  opposite  interests  are  co- 
defendants.  Although  a  defendant  can  by  his  answer  obtain 
the  benefit  of  any  defense  he  may  have  against  the  plaintiff's 
claim,  he  can,  except  in  a  ver}'  few  cases,  obtain  no  relief 
against  the  latter  in  the  same  suit  beyond  what  results  neces- 
sarily from  the  denial  of  the  prayer  of  the  original  bill.2  "  If 
the  facts  which  a  defendant  wishes  to  set  up  destroy  the  plain- 
tiff's apparent  cause  of  action,  they  constitute  a  defense,  and 
should  be  set  up  by  answer  or  plea;  but  if  they  only  furnish 
a  reason  why  the  court  should  make  a  decree    depriving   the 

§  1G9.   i  Mr.  Justice  Nelson  in  Ayres  Field  v.   Schieffelin,   7  J.   Ch.    (N.   Y.) 

v.  Carver,  17  How.  591,  at  page  595.  250. 

2  Story's  Eq.  PL  §  402 ;  Langdell's  2  Carnochan  v.  Christie,  11  Wheat. 
Eq.  PI.  §§  152,  154.  446 ;  Ford  v.  Douglas,  5  How.  143 ;  Chapin 

3  See  Brande  v.  Gilchrist,  18  Fed.  R.  v.  Walker,  6  Fed.  R.  794 ;  Brande  v.  Gil- 
465.  christ,  18  Fed.  R.  465 ;  Denver  &  R.  G. 

§  170.  !  Langdell's  Eq.  PI.  §  124 ;  Ry.  Co.  v.  Denver,  S.  P.  &  P.  R.  Co.,  17 
Dauicll's  Ch.   Pr.    (5th   Am.  ed.)   1550;    Fed.  R.  867. 


§  171]  WHEN    A   CKOSS-BILL    SHOULD   NOT   BE   FILED.  247 

plaintiff  of  his  cause  of  action,  they  must  be  set  up  by  a 
cross-bill;  and  in  the  latter  case  the  defendant's  answer  to  the 
original  bill  should  strictly  contain  nothing  but  discovery." J 
Where  the  plaintiff's  right  depends  upon  an  instrument  or  con- 
veyance which  is  not  void,  but  merely  voidable  on  account  of 
fraud  or  otherwise,  the  defendant  can  in  most  cases  only  set 
up  the  facts  showing  its  invalidity  by  a  cross-bill.4  In  a  suit 
to  set  aside  a  contract,  the  defendant  cannot  have  the  contract 
enforced  unless  he  files  a  cross-bill.5  It  has  been  held  that  a 
discharge  in  bankruptcy  must  be  pleaded  in  a  cross-bill.6  There 
are  very  few  cases7  in  which  a  court  can  give  one  defendant 
relief  against  another,  unless  the  former  files  a  cross-bill.8  No 
party  is  obliged  to  file  a  cross-bill  unless  the  court  orders  him  to 
do  so.  Otherwise,  he  may  seek  by  an  independent  bill  the  relief 
which  he  desires.9  A  cross-bill  may  be  filed  at  any  time  before 
the  final  hearing  if  not  at  any  time  before  the  final  decree.10 

§  171.  When  a  Cross-Bill  should  not  be  Piled.  —  There  are  two 
important  classes  of  cases  in  which  the  court  gives  relief  to  the 
defendant  without  a  cross-bill.  Suits  for  an  account,  in  which, 
if  it  finally  appears  that  the  balance  is  in  favor  of  the  defendant, 
the  court  will  give  him  a  decree  for  the  sum  found  to  be  due  to 
him;1  and  bills  for  the  specific  performance  of  contracts,  in 
which,  if  the  parties  differ  as  to  the  terms  of  the  contract,  and 
that  question  is  decided  in  the  defendant's  favor,  the  court  will 
compel  the  plaintiff  to  perform  the  contract   thus  established.2 

3  Langdell's  Eq.  PI.  §  155.  (N.  Y.),  263;  Langdell's  Eq.  PI.  §§  155, 

*  Ford  v.  Douglas,  5  How.  143  ;  Lang-  156.     See  §  172. 

dell's  Eq.  PI.  §  131 ;  Jacobs  v.  Richards,  8  Langdell's  Eq.  PL  §§  155,  156 ;  Tal- 

18  Beav.  300 ;  Beddoes  v.  Pugh,  26  Beav.  bot  v.  McGee,  4  Monroe  (Ky.),  375,  379; 

407,  416,  417;  Holderness  v.  Rankin,  2  Veach  v.  Rice,  131  U.  S.  293. 

De  Gex,  F.  &  J.  258;  Eddleston  v.  Col-  9  Washburn   &  Moen   Manuf.   Co.  v. 

lins,  3  DeGex,  M.  &  G.  1,  16.     But  see  Scutt,  22  Fed.  R.  710. 

Dayton  v.  Melick,  27  N.  J.  Eq.  (12  C.  E.  1°  Neal  v.   Foster,    34    Fed.   R.    496; 

Green)  362;  Pitts  v.  Powledge,  56  Ala.  Rogers  v.  Reissner,  31  Fed.  R   592. 

147;  Kennedy  v.  Green,  3  My.  &  K.  699,  §  171.  1  Clarke  v.  Tipping,  4  Beav.  588 ; 

718;    Eyry    v.    Hughes,   2   Ch.    D.    148;  Toulmin  v.  Reid,  14  Beav.  499  ;  Jervis  v. 

Osborne  v.  Barge,  30  Fed.  R.  805.  Berridge,  L.  R.  8  Ch.  357 ;  Campbell  v. 

5  Meissner  v.  Buck,  28  Fed.  R.  161 ;  Campbell,  4  Halst.  Eq.  (N.  J.)  740;  Little 
Carnochan  v.  Christie,  11  Wheaton,  446,  v.  Merrill,  62  Me.  328. 

447.  2  Fife  „.  Clayton,  13  Ves.  546 ;  Stapyl- 

6  BanqueFranco-Egyptienne  u.Brown,  ton  i*  Scott,  13  Ves.  425;  Bradford  v. 
24  Fed.  R.  106,  107.  Union  Bank  of  Tennessee.  13  How.  57; 

7  Smith  v.  Woolfolk,  115  U.  S.  143,  Northern  Railroad  v.  Ogdensburg  &  Lake 
148 ;  Chamley  v.  Lord  Dunsany,  2  Sch.  &  Champlain  R.  R.  Co.,  18  Fed.  R.  815. 
Lef.  690,  718;  Conry  v.  Caulfield,  2  Ball  But  see  s.  c.  20  Fed.  R.  347. 

&  Beatty,  255  ;  Elliott   v.  Pell,   1  Paige 


248  CROSS-BILLS,  [chap.  XIII. 

But  these  exceptions  illustrate  the  rule;  for  they  proceed  dis- 
tinctly upon  the  theory  that  the  court  only  entertains  such  bills 
upon  the  condition  that  the  plaintiff  will  consent  to  the  same 
justice  being  rendered  to  the  defendant  that  he  asks  for  himself; 
and  formerly  this  consent  was  required  to  be  expressly  given  in 
the  bill.3  So,  when  a  question  had  been  fully  litigated  between 
a  plaintiff  and  one  defendant,  and  it  appeared  that  the  latter 
was  liable,  not  to  the  former,  but  to  a  co-defendant,  who  was 
himself  liable  to  the  plaintiff  to  the  same  extent,  the  court  has 
allowed  a  decree  in  favor  of  the  latter  defendant  against  the 
other  without  the  filing  of  any  cross-bill.4  "  When  the  decision 
of  a  controversy  between  a  plaintiff  and  two  defendants  raises 
an  incidental  and  collateral  question  between  the  co-defendants, 
the  court  will  sometimes  dispose  of  the  latter  by  means  of  a 
reference  to  a  master,  and  thus  save  the  expense  of  a  separate 
suit,5  and  the  same  course  has  been  taken  when  it  was  impos- 
sible to  give  the  plaintiff  the  relief  to  which  he  was  entitled 
without  first  deciding  a  question  between  co-defendants."  6 
"  When  the  right  claimed  by  a  defendant  consists  simply  in 
excluding  the  plaintiff  from  the  right  asserted  by  the  latter,  of 
course  there  is  no  occasion  for  a  cross-bill.  Therefore,  when  a 
bill  is  filed  by  a  mortgagor  against  a  mortgagee  for  redemption, 
if  the  defendant  can  show  that  the  plaintiff  is  not  entitled  to  re- 
deem, he  can  obtain  the  benefit  of  a  foreclosure  without  filing  a 
cross-bill  for  the  purpose  ;  for  the  dismissal  of  a  bill  to  redeem 
upon  its  merits  is  itself  a  foreclosure."  7  So  a  defendant,  claim- 
ing under  a  patent  which  the  plaintiff  claims  is  an  infringement  of 
one  held  by  him,  ma}r  obtain  a  decree  declaring  the  plaintiff's  pat- 
ent void  without  filing  a  cross-bill,  and  if  he  file  one  for  such  a 
purpose  it  may  be  dismissed.8  It  has  been  said  that  where  an  orig- 
inal bill  seeks  to  enforce  an  equitable  title  against  several  defend- 
ants, it  is  improper  for  a  defendant  to  file  a  cross-bill  seeking  the 
enforcement  of  a  title  paramount  against  his  co-defendants.9     It 

3  Langdell's  Eq.  PI.  §  122 ;  Clarke  v.        5  Hood  v.  Clapham,  19  Beav.  90.     See 
Tipping,  4  Beav.  588 ;    Toulmin  v.  Reid,     Elliott  v.  Pell,  1  Paige  (N.  Y.),  263. 

14  Beav.  505 ;   Kennington  v.  Houghton,         6  Langdell's  Eq.  PI.  §  125. 

2  Y.  &  C.  N.  R.  630.  7  Langdell's  Eq.  PI.  §  123.     See  Hilton 

4  La    Touclie    v.    Lord    Dunsany,    1     v.  Barrow,  1  Ves.  Jr.  284. 

Schoales  &  Lefroy  137,  166,  167;  s.  c.  8  U.  S.   R.   S.  §  4918;   Lockwood   v. 

as  Chamley  v.  Lord  Dunsany,  2  Schoales  Cleaveland,    6    Fed.   R.  721  ;    Foster  v. 

&  Lefroy,  690,  718 ;   Langdell's  Eq.  PI.  Lindsay,  3  Dill.  127. 

§  125.  9  Ayres  v.  Carver,  17  How.  591,  593. 


§  171.]  WHEN   A   CROSS-BILL   SHOULD   NOT   BE   FILED.  249 

was  held,  where  a  bill  was  filed  by  one  tenant  in  common  of  a 
mortgage  against  the  two  others,  who  had  bought  in  separate  par- 
cels the  mortgaged  property,  the  complainant  seeking  to  recover 
from  them  his  share  of  the  purchase-money,  that  a  cross-bill 
could  not  be  filed  by  one  defendant  against  the  other  to  recover 
a  balance  due  him  "resulting  from  the  price  severally  paid  and  to 
be  paid  by  them,  as  compared  with  the  respective  amounts  "  of 
their  interests  in  the  mortgage.10  Where  a  bill  was  filed  against 
the  stockholders  of  an  insolvent  corporation  to  collect  out  of 
their  unpaid  subscriptions  the  amount  of  a  judgment  against  it, 
a  cross-bill  filed  by  one  who  had  paid  a  larger  proportion  of 
his  subscription  than  the  rest,  praying  for  an  accounting  and 
that  the  others  be  compelled  to  pay  the  judgment,  was  held 
bad  upon  demurrer.11  Where  a  bill  was  filed  by  a  remainder-man 
under  a  will,  claiming  that  certain  provisions  of  the  will  estab- 
lishing prior  estates  to  his  own  were  invalid,  and  praying  that 
the  trustees  appointed  by  the  will  convey  the  property  devised, 
either  to  him,  or  to  the  heirs-at-law,  or  to  the  State,  a  bill  filed 
by  the  heirs-at-law,  not  impugning  the  estate  of  the  equitable 
tenant  for  life,  but  praying  that  the  estates  in  remainder,  some  of 
which  were  to  persons  yet  unborn,  should  be  declared  invalid, 
was  held  improper  as  a  cross-bill.12  A  cross-bill  should  not  be 
filed  merely  to  procure  the  appointment  of  a  receiver.13  Where, 
on  a  bill  by  several  persons  to  restrain  the  infringement  of  a 
patent  and  for  an  account,  the  defenses  being  invalidity  of  the 
patent  and  a  license,  the  court  sustains  the  patent  and  decrees 
damages  ;  a  bill  cannot  be  sustained  as  a  cross-bill,  which  sets 
up  a  judgment  in  another  suit  against  one  of  the  complainants, 
and  prays  that  they  all  set  forth  and  discover  what  share  of 
the  damages  is  claimed  by  each,  so  that  the  defendant  who  files 
the  cross-bill  may  set  off  his  judgment  against  the  share  claimed 
by  his  judgment  debtor.14  A  cross-bill  in  a  suit  to  restrain  the 
infringement  of  a  patent  will  not  be  sustained  when  filed  by 
a  defendant  who  claims  no  title  to  the  patented  invention,  for 
the  sole   purpose  of  a  discovery  of  the  weakness  of  the  com- 

10  Weaver  v.  Alter,  3  Woods,  152.  13  Indiana  Southern  It.  R.  Co.  v.  Liver- 

11  Putnam  v.  New  Albany,  4  Biss.  365,     pool,  London,  &  Globe  Ins.  Co.,  109  U.  S. 
373.  168. 

12  Cross  v.  DeValle,  1  Wall.  5.     See        u  Rubber   Company   v.   Goodyear,    9 
Neal  v.  Foster,  34  Fed.  R.  496,  498 ;  Os-     Wall.  807. 
borne  v.  Barge,  30  Fed.  R.  805. 


250  CROSS-BILLS.  [CHAP.  XIII. 

plainant's  title,  an  injunction  against  his  suing  to  enforce  his 
patent,  and  a  decree  declaring  the  patent  void.15  It  has  been 
held  that,  in  such  a  suit,  a  third  party  who  has  been  allowed  to 
intervene  cannot  file  a  cross-bill  which  could  not  have  been 
maintained  b}'  the  original  defendant.16  It  has  been  held  that, 
in  a  suit  brought  under  U.  S.  R.  S.  §  4918,  touching  interfering 
patents,  affirmative  relief  may  be  given  the  defendant  upon  his 
answer  ;  and  that  a  cross-bill  is  unnecessary,17  but  may  be  filed 
if  the  defendant  so  chooses.18  Cross-bills  were  formerly  used  to 
bring  to  the  attention  of  the  court  facts  constituting  a  defense, 
which  had  occurred  since  the  answer  was  filed,  thus  answering 
the  purpose  of  a  plea  puis  darrein  continuance  at  law.19  Now, 
however,  it  is  more  customary  to  plead  such  matters  in  a  sup- 
plemental answer.20  Matters  which  regularly  should  be  included 
in  a  cross-bill  may  by  consent  be  set  up  in  an  answer,  and  relief 
granted  as  if  a  cross-bill  had  been  filed ; 21  and  by  consent  a 
cross-bill  may  be  filed  when  an  answer  is  all  that  is  required 
to  protect  the  rights  of  the  defendant.22 

§  172.  Frame  of  a  Cross-Bill.  —  A  cross-bill  should  state  the  pre- 
vious proceedings  in  the  suit,  setting  forth  specifically  the 
parties,  the  objects,  and  the  prayer  of  the  original  bill ;  and  the 
rights  of  the  party  exhibiting  the  cross-bill,  which  are  necessary 
to  be  made  the  subject  of  a  cross  litigation,  or  the  ground  on 
which  he  resists  the  claims  of  the  plaintiff  in  the  original  bill, 
whichever  is  the  object  of  the  cross-bill.1  It  should  not  intro- 
duce new  and  distinct  matters  not  embraced  in  or  germane  to  the 
original  suit.  For  as  to  such  matters  it  would  be  an  original 
bill ;  and  they  could  not  properly  be  examined  at  the  hearing 
upon  the  former  bill.2      It  should  not  contain  any  statements 

15  Young  v.  Colt,  2  Blatchf.  373.  21  Heath  v.  Erie  Ry.  Co.,  9  Blatchf .  316. 

i6  Curran  v.   St.  Charles   Car  Co.,  32  See  Kelsey  v.  Hobby,  16  Pet.  269. 

Fed.  R.  835.     But  see  Ide  v.  Ball  Engine  2-  Northern  Railroad  v.  Ogdensburg  & 

Co.,  31  Fed.  R.  835.  Lake  Champlain  R.  R.  Co.,  18  Fed.  R.  815 ; 

«  Lockwood  v.  Cleveland,  6  Fed.  R.  s.  c.  20  Fed.  R.  347. 

466.  §  172.    1  Story's  Eq.  PI.  §  401 ;   Mit- 

18  American  Clay  Bird  Co.  v.  Ligowski  ford's  PI.  ch.  1,  §  3.  But  see  Neal  v. 
Clay-Pigeon  Co.,  31  Fed.  R.  466.  Foster,  34  Fed.  R.  496. 

19  Mitford's  PI.  ch.  1,  §  3;  Hayne  v.  2  Story's  Eq.  PI.  §  401;  Weaver  v. 
Hayne,  3  Ch.  R.  19.  See  Kelsey  v.  Alter,  3  Woods,  152 ;  Cross  v.  DeValle, 
Hobby,  16  Pet.  269,  277.  1  Wall.  5 ;  Ayres  v.  Carver,  17  How.  591 ; 

-'  See  Suydam  v.  Truesdale,  6  McLean,     Rubber  Company  v.  Goodyear,  9  Wall. 
459;  Kelsey  v.  Hobby,  16  Pet.  269,  277  ;     807. 
Talmage  v.  Pell,  9  Paige  (N.  Y.),  410, 413. 


§  172.]  FRAME   OF   A   CROSS-BILL.  251 

inconsistent  with  those  in  the  answer  of  the  defendant  filing  it. 
If  so,  they  may  be  disregarded  ; 3  or  if  principally  composed  of 
such  the  cross-bill  may  be  dismissed.4  It  will  be  sustained  even 
if  the  requisite  difference  of  citizenship  do  not  exist  between 
the  plaintiffs  and  defendants  in  it,  as  it  is  merely  auxiliary  to 
the  principal  suit  of  which  the  court  has  already  obtained  juris- 
diction.5 It  seems  that  a  cross-bill  may  pray  relief  which  could 
not  be  obtained  by  original  bill  because  of  a  remedy  at  law. 
Thus,  it  has  been  held  that  a  defendant  who  is  not  in  possession 
of  land,  when  a  bill  is  filed  against  him  to  remove  a  cloud  to  the 
title  to  the  same,  may,  if  he  can  show  a  better  title  than  that  of 
the  complainant,  obtain  possession  of  the  land  by  cross-bill.6  A 
cross-bill  filed  simply  for  discovery  need  show  no  equity  for  dis- 
covery, as  the  court's  jurisdiction  for  that  purpose  is  sufficiently 
supplied  by  the  original  bill.7  When  a  cross-bill  is  brought  by 
one  defendant  against  another,  it  seems  that  the  original  com- 
plainant must  be  made  a  party  to  it.8  It  has  been  said  by  a  judge 
of  great  authority  that  "  new  parties  cannot  be  introduced  into  a 
cause  by  a  cross- bill."  9  It  was  then  held  that  this  could  not  be 
done  when  the  result  would  be  to  arrange  parties  of  the  same 
citizenship  upon  different  sides  of  a  controversy  over  which  a 
Federal  court  would  have  no  original  jurisdiction.10  It  has  been 
said,  however,  that  such  an  objection  can  be  raised  only  by  the 
new  parties  thus  sought  to  be  brought  in.11  And  in  a  suit  to 
restrain  the  infringement  of  a  patent,  a  cross-bill  was  sustained 
which  brought  in  as  defendant  to  it  a  new  party,  the  assignor  of 
the  patent  to  the  original  complainant;  claimed  that  that  assignor 
had  previously  assigned  the  equitable  title  thereto  to  the  orator  of 
the  cross-bill,  and  that  the  legal  assignee  had  bought  with  notice 
thereof;  and  prayed  a  conveyance  of  the  patent  and  an  injunction 
against  further  annoyance.12     A  stranger  to  a  suit  cannot  file  a 

8  Savage  v.  Carter,  9  Dana  (Ky.),  409,  ch.  1,  §  3  ;  Doble  v.  Potman,  Hardres, 

414.  160. 

4  Hudson  v.  Hudson,  3  Randolph  ( Va.),  8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1747  ; 

117.  Putnam  v.  New  Albany,  4  Biss.  365,  373. 

6  Peay  v.  Schenck  &  Bliss,  Woolw.  175  ;  9  Mr.  Justice  Curtis  in  Shields  v.  Bar- 
Cross  v.  DeValle,  1  Wall.  5;  Osborne  Co.  row,  17  How.  130,  145.     See  Randolph  v. 
v.  Barge,  30  Fed.  R.  805.    But  see  Veach  Robinson,  2  N.  J.  L.  J.  171. 
v.  Rice,  131  U.  S.  293,  318.  10  Shields  v.  Barrow,  17  How.  130. 

6  Greenwalt  v.  Duncan,  16  Fed.  R.  35.  u  Brandon   Manuf.   Co.   v.  Prime,  14 

Contra,  Calverley  v.  Williams,  1  Ves.  Jr.  Blatchf.  371,  373. 

211,  213 ;  Story's  Eq.  PI.  §  398.  12  Brandon    Manuf.    Co.   v.  Prime,   14 

1  Story's  Eq.  PI.  §  399  ;  Mitford's  PI.  Blatchf.  371.     See  also  Blodgett  v.  Ho- 


252  CKOSS-BILLS.  [chap.  XIII. 

cross-bill  without  permission  from  the  court.13  One  filed  without 
such  permission  may  be  stricken  from  the  file.14  In  England  a 
cross-bill  could  be  filed  in  a  different  court  from  that  where  the 
original  bill  was  pending ; 15  but  a  cross-bill  cannot  be  filed  in  a 
State  court  to  a  bill  pending  in  a  Circuit  Court  of  the  United 
States.16  It  is  no  objection  to  a  cross-bill  in  a  Federal  court  that 
an  original  bill  for  the  same  relief  was  previously  filed  in  a  court 
of  the  State  where  the  Federal  court  was  held;17  but  after  a 
removal  of  the  suit  begun  in  the  State  court,  the  two  suits  may 
be  consolidated.18  A  cross-bill  should  be  signed  by  counsel.19 
In  other  respects  cross-bills  should  conform  to  the  requirements 
of  original  bills.20  It  is  irregular  to  unite  a  cross-bill  and  an 
answer  in  the  same  pleading.21  A  petition  "  by  way  of  a  cross- 
bill "  filed  by  a  defendant,  "  referring  to  the  case  by  title,  and  stat- 
ing that '  the  facts  fully  appear  in  the  case,'  praying  the  reverse  of 
what  the  complainant  had  prayed,  but  not  making  anybody  de- 
fendant nor  praying  process,  and  under  which  no  process  was 
obtained,"  was  held  a  mere  nullity,  which  should  have  been 
stricken  from  the  file,  and  was  disregarded  by  the  court  upon 
appeal.22  It  seems  that  a  bill  filed  as  a  cross-bill,  if  irregular  in 
that  respect  alone,  may  yet  be  sustained  as  an  original  bill.23 

§  173.  Proceedings  upon  Cross-Bills.  —  It  has  been  held  at  cir- 
cuit that  a  subpoena  to  answer  a  cross-bill  may,  by  express  leave 
of  the  court,  be  served  by  substitution  upon  the  attorney  for  the 
complainant  to  the  original  bill  when  his  client  is  beyond  the 
jurisdiction  of  the  court.1  In  that  case  the  original  bill  was  filed 
to  foreclose  a  mortgage,  of  which  the  cross-bill  prayed  a  cancella- 
tion.    The  court  said :  "  The  reason  of  this  rule  would  seem  to 

bart,  18  Vt.  414  ;  Hurd  v.  Case,  32  111.  45 ;  19  Smith's  Ch.  Pr.  Book  II.  ch.  i. 

Jones  v.  Smith,  14  111.  229.  20  Smith's  Ch.  Pr.  Book  II.  ch.  i.;  Dan- 

13  Bronson  v.  La  Crosse  &  Milwaukee  iell's  Ch.  Pr.  (5th  Am.  ed.)  ch.  xxxiv.  §  1. 
R.  Pi,  Co.,  2  Wall.  283  ;  Forbes  v.  Mem-  See  Mason  v.  Gardiner,  4  Brown  Ch.  C. 
phis,  El  Paso,  &  Pacific  R.  R.  Co.,  2  436 ;  Greenwalt  v.  Duncan,  16  Fed.  R.  35. 
Woods,  323.  21  Hubbard  v.  Turner,  2  McLean,  519, 

14  Bronson  v.  La  Crosse  &  Milwaukee  540;  Morgan  v.  Tipton,  3  McLean,  339, 
R.  R.  Co.,  2  Wall.  283,  294,  303;  Putnam  344.  But  see  Talbot  v.  McGee,  4  Monr. 
v.  New  Albany,  4  Biss.  365,  367.  (Ky.)  375,  378. 

15  Parker  v .  Leigh,  6  Madd.  115  ;  -2  Washington  R.  R.  v.  Bradleys,  10 
Story's  Eq.  PI.  §  400.  Wall.  299,  300,  303. 

16  Story's  Eq.  PL  §  400.  23  Foss  v.  First  Nat.  Bank,  1  McCrary, 

17  Brandon   Manuf.  Co.   v.  Prime,   14  474. 

Blatchf .  3?1.  §  173.  *  Lowenstein  v.  Glidewell,  5  Dill. 

J8  Wabash,  St.  L.,  &  P.  Ry.  Co.  v.  Cen-  325.  But  see  Rubber  Co.  v.  Goodyear, 
tral  Trust  Co.  of  N.  Y.,  23  Fed.  R.  513.         9  Wall.  807,  810,  811. 


§  173.]  PROCEEDINGS   UPON   CROSS-BILLS.  253 

limit  it  in  equity  cases  to  cross-bills,  either  wholly  or  partly  de- 
fensive in  their  character,  and  to  deny  its  application  to  cross- 
bills setting  up  facts  not  alleged  in  the  original  bill,  and  which 
new  facts,  though  they  relate,  as  they  must,  to  the  subject-matter 
of  the  original  bill,  are  made  the  basis  for  the  affirmative  relief."2 
Leave  to  make  substituted  service  was  refused  in  a  case  where 
the  plaintiffs  offered  to  stipulate  that  the  matter  sought  to  be 
pleaded  by  cross-bill  might  be  set  up  by  answer.3  Service  by 
publication  of  a  subpoena  upon  a  cross-bill  is  improper.4  "  Where 
a  defendant  in  equity  files  a  cross-bill  for  discovery  only  against 
the  plaintiff  to  the  original  bill,  the  defendant  to  the  original  bill 
shall  first  answer  thereto  before  the  original  plaintiff  shall  be 
compellable  to  answer  the  cross-bill.  The  answer  of  the  original 
plaintiff  to  such  cross-bill  may  be  read  and  used  by  the  party 
filing  the  cross-bill  at  the  hearing,  in  the  same  manner  and 
under  the  same  restrictions  as  the  answer  praying  relief  may 
now  be  read  and  used.5  By  amending  his  bill,  the  plaintiff  was 
held  in  England  to  lose  the  benefit  of  such  a  rule,6  provided  that, 
when  he  made  the  amendment,  he  knew  that  the  cross-bill  had 
been  filed.7  The  testimony  taken  under  the  cross-bill  may  be 
read  for  or  against  the  original  bill ;  and  the  testimony  taken 
under  the  original  bill  can  be  read  for  or  against  the  cross-bill. 
In  either  case  a  formal  order  granting  leave  to  do  this,  "  saving 
all  just  exceptions,"  should  first  be  obtained  ex  parte?  Both 
bills  are  usually  heard  together  both  in  the  first  instance 9  and 
upon  appeal.10  Where  a  decree  had  been  made  dismissing  a 
cross-bill  before  a  decree  upon  the  original  bill,  it  was  held 
that  an  appeal  therefrom  taken  before  a  decree  upon  the  original 
bill  must  be  dismissed.11  A  decree  upon  the  original  bill  will 
supersede  a  previous  decree  upon  a  cross-bill  if  the  two  are 
inconsistent.12     Where  the  cross-bill  seeks  relief,  the  voluntary 

2  Caldwell,  J.,  in  Lowcnstein  v.  Glide-  1553  ;    Lubiere  v.   Genou,   2  Ves.    Sen. 

well,  5  Dill.  325,  328.     See  Rubber  Co.  579. 

v.  Goodyear,  9  Wall.  807,  810,  811.  9  Ayres  v.  Carver,  17  How.  501 ;  Moore 

8  Heath  v.  Erie  Ky.  Co.,  9  Blatehf .  316.  v.  Huntington,  17  Wall.  417, 422  ;  Ex  parte 

4  Webster  Loom  Co.  r.  Short,  10  Off.  Railroad  Co.,  95  U.  S.  221 ;  Daniell's  Ch. 

Gaz.  1019.  Pr.  (2d  Am.  ed.)  1751. 

6  Rule  72.  10  Ayres  v.  Carver,  17  How.  591 ;  Ex 

6  Noel  v.  King,  2  Madd.  392  ;  Hannah  v.  parte  Railroad  Co.,  95  U.  S.  221. 
Hodgson,  80  Beav.  19.  u  Ayres  v.  Carver,  17  How.  591. 

7  Gray  v.  Haig,  13  Beav.  65.  12  Ex  parte  Railroad  Co.,  95  U.  S.  221, 

8  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  1552,  225. 


254  CROSS-BILLS.  [CHAP.  XIII. 

dismissal  of  the  original  bill  will  not  dismiss  the  cross-bill.13  It 
is  otherwise  where  the  cross-bill  merely  seeks  discovery.14  It 
has  been  held  that  a  dismissal  of  the  original  bill  by  the  court 
after  a  hearing  operates  as  a  dismissal  of  a  cross-bill  between  the 
defendants,  even  though  the  cross-bill  show  a  good  case  for 
relief;  "  but  as  a  cross-bill,  it  must  follow  the  fate  of  the  original 
bill."  15  A  cross-bill  should  not  be  filed  before  the  answer  to  the 
original  bill.16  It  should  regularly  be  filed  with,  or  immediately 
after,  the  defendant's  answer,17  but  may  be  allowed  any  time 
before  the  final  decree.18  But  a  creditor  who  has  come  in  under 
a  decree  for  the  benefit  of  creditors  may  file  a  cross-bill  without 
leave  of  the  court,  if  his  rights  cannot  be  otherwise  adequately 
protected.19  In  a  case  where  the  defendant,  after  answer,  learned 
of  facts  tending  to  show  that  the  plaintiff  had  before  suit  parted 
with  all  interest  in  the  subject-matter  to  a  citizen  of  the  same 
State  as  the  defendant,  the  proceedings  were  stayed  until  the 
complainant  answered  a  cross-bill  charging  such  a  transfer.20 
When  an  abatement  takes  place  after  a  cross-bill  has  been  filed, 
it  seems  that  there  should  be  a  bill  of  revivor  filed  in  both  the 
original  and  the  cross  cause.21  Otherwise,  proceedings  upon  cross- 
bills are  substantially  the  same  as  those  upon  original  bills.22 

13  Lowenstein  v.  Glidewell,  5  Dill.  325 ;  White  v.  Buloid,  2  Paige  (N.  Y.),  164  ; 

Chicago   &   Alton   R.    R.    Co.   v.  Union  Allen  v.  Allen,  Hempst.  58. 

Rolling  Mill  Co.,  109  U.  S.  702.  18  Neal  v.  Foster,    34    Fed.  R.    496 ; 

«  Donohoe  v.  Mariposa  Land  &  Mining  Rogers  v.  Reissner,  31  Fed  R.  592. 

Co.,  1  Pacific  Coast  L.  J.  211,  219.  19  La  Touche  v.  Lord  Dunsany,  1  Sch. 

15  Mr.  Justice  Field  in  Dows  v.  Chicago,  &  Lef.  137  ;  Story's  Eq.  PI.  §  397. 
11  Wall.  108,  112.  See  also  Cross  v.  23  Young  v.  Pott,  4  Wash.  521. 
DeValle,  1  Wall.  5, 14.    But  see  Wabash,  21  Story's  Eq.  PI.  §  363. 

St.  L.  &  P.  Ry.  Co.  v.  Central  Trust  Co.  of  ^  See,  however,  Lautz  v.  Gordon,  28 

N.  Y.,  22  Fed.  R.  138,  142.  Fed.  R.  264 ;  Puetz  v.  Bransford,  31  Fed. 

16  Allen  v.  Allen,  Hempst.  58.  R.  458. 

17  Darnell's  Ch.  Pr.  (2d  Am.  ed.)  1745 ; 


S  174.1  ABATEMENT.  255 

0  J 


CHAPTER  XIV. 

BILLS  OF  REVIVOR,  SUPPLEMENTAL  BILLS,  BILLS  OF  REVIVOR 
AND  SUPPLEMENT,  AND  BILLS  IN  THE  NATURE  OF  THE 
SAME. 

§  174.  Abatement.  —  If  any  event  happens  after  the  filing  of  a 
bill  in  equity  which  makes  it  necessary  to  bring  in  a  new  party, 
either  plaintiff  or  defendant,  in  order  to  obtain  a  complete  or 
satisfactory  determination  of  the  controversy,  the  suit  will  either 
abate  or  become  defective.1  The  abatement  or  defect  must  be 
remedied  by  the  filing  of  a  bill  of  revivor,  a  bill  in  the  nature  of 
a  bill  of  revivor,  a  supplemental  bill,  a  bill  in  the  nature  of  a 
supplemental  bill,  or  a  bill  of  revivor  and  supplement.2  An  abate- 
ment takes  place  by  the  death  of  one  of  the  parties,  or,  where  a 
married  woman  is  under  a  disability,  by  the  marriage  of  a  female 
plaintiff.3  An  action  entirely  abates  by  the  death  of  any  of  the 
plaintiffs : 4  unless  his  interest  therein  wholly  ceases  by  his 
death,5  or  survives  to  another  party  to  the  suit,6  or  he  has  been 
previously  discharged  by  a  decree  in  an  interpleader7  suit,  or  a 
suit  in  the  nature  of  an  interpleader;  when  it  does  not.  Formerly 
a  suit  abated  by  the  marriage  of  a  female  plaintiff;8  but  it  may 
be  doubted  whether  this  rule  would  be  followed  where  a  married 
woman  has  the  same  power  over  her  property  as  if  she  were 
single.9  By  the  marriage  of  a  female  defendant,  a  suit  never 
abated,  though  her  husband  had  to  be  named  in  all  subsequent 
proceedings.10  When  the  husband  of  a  female  plaintiff  died,  by 
the  former  practice  she  could  at  her  option  continue  the  suit 
without  filing  any  bill  of  revivor ;  but  if  she  did  not,  it  was  con- 

§  174.   !  Mitford's  PI.  ch.  1,  §  3.  7  Anon.,   1    Vera.   351  ;    Jennings   v. 

2  Mitford's  PI.  ch.  1,  §  3.  Nugent,  1  Molloy,  134 ;  Daniell's  Ch.  Pr. 

8  Mitford's  PI.  ch.  1,  §  3.  (2d  Am.  ed.)  1765. 

*  Mitford's  PI.  ch.  1,  §  3 ;  Story's  Eq.  8  Mitford's  PI.  ch.  1,  §  3;  Story's  Eq. 

PI.  §  354.  PI.  §  354. 

6  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1698;  9  Lorillard  v.  Standard  Oil  Company, 

Mitford's  PI.  ch.  1,  §  3.  2  Fed.  R.  902. 

6  Fallowes  v.  Williamson,  11  Ves.  309;        10  Mitford's  PI.  ch.  1,  §  3;  Story's  Eq. 

Boddy  v.  Kent,  1  Mer.  364 ;   Fisher  v.  PI.  §  354. 
Rutherford,   Baldw.  188;   Daniell's   Ch. 
Pr.  (2d  Am.  ed.)  1699. 


256  BILLS   OF   KEYIVOR,  ETC.  [CHAP.  XIV. 

sidered  abated  and  she  was  not  liable  for  the  costs.11  A  suit 
abates  upon  the  death  of  a  defendant  who  has  appeared  so  far  as 
proceedings  against  him  or  his  interest  are  concerned,  and  if  he 
were  an  indispensable  party  to  a  decree  all  proceedings  must  be 
suspended  till  his  representatives  have  been  brought  in.12  If, 
however,  his  interest  wholly  ceases  by  his  death,  or  wholly  sur- 
vives to  one  of  the  other  parties,  no  revivor  will  be  necessary.13 
A  suit  abates  by  the  death  of  a  member  of  a  firm  during  a  suit 
against  it.14  The  death  of  a  defendant  before  appearance  does 
not  abate  the  suit.  For,  according  to  the  former  practice,  till 
his  appearance,  or  a  decree  taken  against  him  pro  confes&o,  there 
was  no  cause  against  him ;  but  a  bill  had  to  be  filed  against  his 
representative,  which  was  an  original  bill  as  far  as  respected  the 
defendant,  but  a  supplemental  bill  with  respect  to  the  suit.15  It 
has  been  held  that  the  death  of  a  sole  defendant  to  a  suit  for  an 
injunction  against  the  infringement  of  a  patent  and  for  an  ac- 
counting, when  it  occurs  before  a  decree  for  an  accounting,  abates 
and  terminates  the  suit  so  that  it  cannot  be  revived  against  his 
executor,  unless  it  be  shown  that  the  latter  continues  the  in- 
fringement.16 After  an  interlocutory  decree  for  an  accounting, 
such  a  suit  may  be  revived  against  the  personal  representatives 
of  the  deceased  defendant.17  Unless  there  be  some  clause  in  its 
charter  to  the  contrary  a  suit  by  or  against  a  corporation  abates 
by  the  dissolution  of  the  corporation ; 18  but  it  has  been  held  that 
the  entrance  into  liquidation  and  the  closing  of  the  business  of  a 
national  banking  association  does  not  abate  a  suit  brought  in  its 
name.19  After  a  decree  has  been  reversed  by  the  Supreme  Court 
upon  appeal,  and  the  cause  sent  back  to  the  Circuit  Court  with  a 
special  mandate  directing  the  further  proceedings  to  be  taken, 
it  is  too  late  to  claim  for  the  first  time  that  the  suit  has  abated 
by  the  death  of  the  complainant  before  the  entry  of  the  reversed 
decree.20 

11  Mitford's  PL  ch.  1,  §  3.  I6  Draper  v.  Hudson,  1  Holmes,  208. 

12  Story's  Eq.  PI.  §  369.  17  Atterbury  v.  Gill,  13  Off.  Gaz.  276. 

13  Mitford's  PI.  ch.  1,  §  3;  Daniell's  18  National  Bank  v.  Colby,  21  Wall. 
Ch.  Pr.  (2d  Am  ed.)  1698,1699;  Story's  609;  Greeley  v.  Smith,  3  Story,  658; 
Eq.  PI.  §  357.  Mumma   v.  Potomac  Company,  8  Pet. 

14  Wilson  v.  Seligman,  10  Repr.  651,  281. 

A.  D.  1880.  19  National  Bank  v.  Insurance  Co.,  104 

15  Shadwell,  V.  C,  in  Crowfoot  v.  Man-    U.  S.  54,  72. 

der,  9  Simons,  396.     See  United  States        ™  Ex  parte  Story,  12  Pet.  339,  342. 
v.  Fields,  4  Blatchf.  326. 


§  175.]  EFFECT   OF   ABATEMENT.  257 

§  175.  Effect  of  Abatement.  —  "An  abatement,  in  the  sense  of 
the  common  law,  is  an  entire  overthrow  or  destruction  of  the  suit, 
so  that  it  is  quashed  and  ended.  But  in  the  sense  of  courts  of 
equity,  an  abatement  signifies  only  a  present  suspension  of  all  pro- 
ceedings in  the  suit,  from  the  want  of  proper  parties  capable  of 
proceeding  therein.  At  the  common  law,  a  suit,  when  abated,  is 
absolutely  dead.  But  in  equity,  a  suit,  when  abated,  is  (if  such 
an  expression  be  allowable)  merely  in  a  state  of  suspended  ani- 
mation, and  it  may  be  revived."  l  Upon  the  total  abatement  of 
a  suit  the  cause  is  completely  suspended  while  the  abatement 
continues  ;  and,  in  general,  all  orders  made  pending  such  abate- 
ment will  be  considered  nugatory  and  may  be  discharged.2 
Applications  may,  however,  be  made  by  parties  affected  thereby, 
to  discharge  process  of  contempt  issued  or  executed  pending  the 
abatement.3  Applications  have,  moreover,  been  granted  during  an 
abatement  for  the  payment  of  money  out  of  court,  when  the  right 
thereto  had  been  previously  established  ; 4  for  the  preservation 
of  the  property  in  dispute  ;5  for  the  punishment  of  a  party  for 
breach  of  an  injunction;6  and  to  set  aside  irregular  proceedings 
pending  the  abatement.7  So,  too,  a  decree  previously  made  could 
be  enrolled  ;8  and  it  has  been  held  in  England  that  depositions 
might  be  taken  under  a  commission  previously  issued.9  Orders 
previously  made  continue  in  force  until  discharged.10  But  the 
time  given  a  party  within  which  to  do  a  certain  act  is  always 
suspended  by  an  abatement.11  Where  a  preliminary  injunction 
has  been  previously  granted,  the  court  may  issue  an  order  re- 
quiring that  the  representatives  of  a  deceased  plaintiff  revive 
within  a  certain  time,  usually  a  fortnight  after  notice,  or  that  the 
injunction  be  dissolved.12     No  such  order  will  be  granted  after  a 

§  175.   J  Story's   Eq.   PI.  §  354.     See  8  Darnell's  Ch.  Pr.  (2d  Am.  ed.)  1715. 

also  Hoxie  v.  Carr,  1   Sumner,  173,  178;  9  Thompson  v.  Took,  1  Dickens,  115; 

Melius  v.  Thompson,  1  Cliff.  125,  129.  Peters  v.  Robinson,  1  Dickens,  116;  Sin- 

2  Daniell's  Ch.  Pr.  (2d  Am.  ed),  1714;  clair  v.  James,  1  Dickens,  277. 

Griswold  v.  Hill,  1  Paine,  483.  10  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1716; 

8  Daniell's  Ch.  Pr.  (2d  Am.  ed)  1715.  Lee   v.   Lee,   1    Hare,   622;    Hawley   v. 

*  Finch   v.   Lord   Winchelsea,   1   Eq.  Bennett,  4  Paige  (N.  Y.)  163. 

Cas.  Abr.  2 ;  Roundell  v.  Currcr,  6  Ves.  u  Gregson  v.  Oswald,  1  Cox  Eq.  343. 

250;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1715.  12  Jones  v.  Massey,  Brown  v.  Warner, 

6  Washington  Insurance  Co.  v.  Slee,  2  Turner  v.  Cole,  all  quoted  in  Chowick  v. 

Paige  (N.  Y.),  365,  368.  Dimes,  3  Beav.  290,  292,  293;  Chester  v. 

6  Hawley  v.  Bennett,  4  Paige  (N.  Y.),  Life  Association  of  America,  4  Fed.  K. 
163.  487. 

7  Quackenbush  v.  Leonard,  10  Paige 
(N.  Y.).,  131. 

17 


258  BILLS    OF   EEVIVOK,   ETC.  [CHAP.  XIV. 

decree  for  a  perpetual  injunction  ;  for  that  "  would  be  in  effect 
decreeing  a  perpetual  suit."  13  The  power  of  the  court  to  make 
an  order  that  the  representatives  of  a  deceased  plaintiff  revive 
within  a  certain  limited  time  after  notice  to  them,  or  that  the 
bill  be  dismissed,  is  doubtful.14  Where  the  abatement  is  partial, 
as  where  it  is  caused  by  the  death  of  a  defendant,  it  prevents 
those  proceedings  only  by  which  his  interest  may  be  affected.15 
Thus,  if  there  be  a  decree  against  trustees  and  the  beneficiary  of 
their  trust  for  a  conveyance,  and  the  beneficiary  die,  the  trustees 
may  still  be  obliged  to  convey ; 16  and,  after  the  death  of  one 
defendant,  process  of  contempt  may  be  issued  and  executed 
against  the  others.17  It  has  also  been  held  that  the  death  of  a 
defendant  after  hearing  but  before  a  decree  does  not  necessarily 
prevent  judgment;18  and  that,  if  practicable,  a  decree  made 
before  a  defendant's  death,  for  example,  a  decree  for  a  sale,  may 
be  enforced  without  revivor. 19 

§  176.  When  a  Suit  may  be  Revived  and  Effect  of  Revivor.  —  A 
suit  which  has  abated  may  generally  be  revived  when  anything 
further  remains  to  be  done  therein.1  But  a  suit  will  not  be 
allowed  to  be  revived  merely  for  costs  which  are  untaxed,  and 
have  not  been  previously  directed  to  be  paid  out  of  a  particular 
estate  or  fund,  or  decreed  against  an  executor  out  of  assets.2 
Nor  can  a  bill  of  revivor  be  brought  upon  a  bill  filed  merely 
for  discovery,  after  the  discovery  required  thereby  has  been  ob- 
tained.3 Where  the  abatement  is  by  the  death  or  marriage  of  a 
plaintiff,  an  order  to  revive  the  suit  places  it  and  all  proceedings 
in  it  in  precisely  "the  same  plight,  state,  and  condition  that  the 
same   were  in   at  the  time   when  the  abatement  took  place." 4 

13  Askew  v.  Townsend,  2  Dickens,  471.         18  Davies  r.  Davies,  9  Ves.  461 ;  Dan- 

14  Compare  dictum  of  Judge  Story  in     iell's  Ch.  Pr.  (2d  Am.  ed.)  1717. 

Hoxie  v.  Carr,   1   Sumner,  173,  178,  and  I9  Whiting    v.    Bank    of    the    United 

the  case  of  Chowiek  v.  Dimes,  3  Beav.  States,  13  Pet.  6. 

290,  where  Lord  Langdale,  M.  R.,  granted  §17(5.    1  Gilbert's   Forum    Romanum, 

such  an  order;  with  that  of  Lee  v.  Lee,  181  ;  Johnson  v.  Peck,  2  Ves.  Sen.  465; 

1  Hare,  617,  where  Vice-Chanceller  Wig-  Fitzpatrick  v.  Domingo,  14  Fed.  R.  216  ; 

ram  held  that  the  court  had  no  power  to  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1694. 

make  one.  2  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1694- 

15  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1716;  1697;  Story  Eq.  PI.  §  371;  Blower  r. 
Finch  v.  Lord  Winchelsea,  1  Eq.  Cas.  Morrets,  3  Atk.  772 ;  Kemp  v.  Mackrell, 
Abr.  2.  3  Atk.  812;  Travis  v.  Waters,  1  J.  Ch. 

"  Finch  v.  Lord  Winchelsea,  1  Eq.  Cas.  (N.  Y.)  85. 
Abr.  2.;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  3  Horsburg  v.  Baker,  1  Pet.  232. 

1716.  4  Gregson  v.  Oswald,  1  Cox  Eq.  344. 

"  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1716. 


§  177.]  WHO   MAY   REVIVE   A   SUIT.  259 

The  new  plaintiff  may  then  take  the  same  proceedings  that  the 
original  plaintiff  might  have  done.6  Thus,  the  new  plaintiff  may 
prosecute  process  of  contempt  against  the  defendant,  taking  it 
up  where  it  stood  at  the  abatement ;  and  if  a  process  has  been 
previously  issued  it  will  be  revived  with  the  revivor  of  the  suit.0 
But  where  the  abatement  is  caused  by  the  death  of  a  defendant, 
"the  process,  being  personal,  cannot  be  revived."7  In  general, 
however,  an  order  to  revive  against  the  representatives  of  a  de- 
ceased defendant,  will  place  the  suit  as  fully  in  the  same  position 
with  regard  to  such  representatives  as  can  be  done  with  refer- 
ence to  the  change  of  the  individuals  before  the  court.8  After 
revivor  testimony  previously  taken  can  be  used.9 

§  177.  "Who  may  Revive  a  Suit.  —  It  is  generally  necessary  in 
order  to  entitle  one  to  revive,  that  there  should  be  a  privity 
between  him  and  the  party  whose  death  caused  the  abatement. 
Therefore,  upon  the  death  of  one  suing  in  a  representative  capa- 
city, the  defect  can  usually  be  remedied  only  by  a  supplemental 
bill,  and  not  by  a  bill  of  revivor.1  It  has  been  held,  however, 
that  upon  the  death  of  an  administrator,  the  administrator  de  bonis 
non  may  file  a  bill  of  revivor,  "  though  there  is  no  actual  privity 
between  him  and  the  original  plaintiff."2  But  Judge  Story  sug- 
gests that  a  bill  in  the  nature  of  a  bill  of  revivor  would  be  more 
appropriate.3  It  is  said  by  Lord  Redesdale  that  in  the  case  of  a 
bill  by  creditors  on  behalf  of  themselves  and  other  creditors,  any 
creditor  may  revive;4  but  according  to  Daniell,  in  practice  the 
form  of  a  bill  in  such  a  case  is  that  of  a  supplemental  bill  in  the 
nature  of  a  bill  of  revivor,  and  not  of  a  mere  bill  of  revivor.5  Be- 
fore decree,  a  suit  can  only  be  revived  by  one  or  all  of  the  sur- 
viving plaintiffs,  or  the  representatives  of  one  that  has  died.6  If 
any  of  these  refuse  to  join,  he  must  be  made  a  defendant  to  the 
bill  filed  to  revive  the  suit.7     If  the  suit  concerned  solely  the 

5  Vattier  v.  Hinde,   7  Pet.  252,  266;  Mitford's  PI.  ch.  1,  §  3;  Unpins  v.  York 

Philips  v.  Derbie,  1  Dickens,  98;  Hyde  v.  Building  Co.,  2  Eq.  Cas.  Abr.  3;  <  >wen  v. 

Forster,  1  Dickens,  132;  Daniell'a  Ch.  Pr.  Curzon,  2  Vern.  237. 
(2d  Am.  ed.)  1778.  8  Story's  Eq.  PI.  §  382,  note  4. 

0  Hyde   v.   Forster,    1   Dickens,   132;         *   Mitford's  PI.  ch.  1,  §  3. 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1778.  5  Daniell's  Ch.  Pr.  (2d.  Am.  ed)  1703. 

7  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1778.  G   Daniell's  Ch.  Pr.  (2d  Am.  ed  )  1700; 

8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1778.  Ch<  sti  r  v.  Life  Association  of  America, 

9  Vattier  v.  Hinde,  7  Pet.  252,  266.  4  Fed.  1?.  487. 

§197.  >  Daniell's  Ch.  Pr.  (2d  Am.  7  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1700; 
ed.)  1«97;  Story's  Eq.  PI.  §  :;i0.  Fallowes  v.  Williamson,  11  Ves.  309. 

2  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1697  ; 


260  BILLS   OF   REVIVOR,   ETC.  [CHAP.  XIV. 

real  estate  of  a  deceased  plaintiff,  his  heirs  alone  are  entitled  to 
represent  him  therein  ; 8  if  solely  his  personal  estate,  his  execu- 
tor or  administrator  ; 9  if  both,  separate  bills  may  be  revived  by 
both  his  heirs  and  personal  representatives,  and  the  neglect  of 
one  to  revive  will  not  prejudice  the  other.10  In  the  case  of  a 
suit  by  a  corporation  sole,  the  death  of  the  plaintiff,  if  he  were 
entitled  to  the  subject-matter  for  his  own  benefit,  caused  an 
abatement ;  and  the  suit  could  be  revived  by  his  personal  repre- 
sentative.11 If,  however,  he  were  only  entitled  to  the  subject- 
matter  in  his  corporate  capacity,  the  suit  became  defective,  and 
could  only  be  continued  by  his  successor  by  means  of  an  original 
bill  in  the  nature  of  a  supplemental  bill.12  After  a  decree,  a  suit 
may  be  revived  by  any  defendant,  or  by  the  representative  of  any 
deceased  defendant,  who  has  acquired  any  right  thereunder,  as 
well  as  by  any  plaintiff.13 

§  178.  Manner  of  Revivor  in  General.  —  "  When  a  suit  became 
abated  after  a  decree  signed  and  inrolled,  it  was  anciently  the 
practice  to  revive  the  decree  by  a  subpoena  in  the  nature  of  a 
scire  facias,  upon  the  return  of  which  the  party  to  whom  it  was 
directed  might  show  cause  against  the  reviving  of  the  decree,  by 
insisting  that  he  was  not  bound  by  the  decree,  or  that  for  some 
other  reason  it  ought  not  to  be  enforced  against  him,  or  that  the 
person  suing  the  subpoena  was  not  entitled  to  the  benefit  of  the 
decree.  If  the  opinion  of  the  court  was  in  his  favor  he  was  dis- 
missed with  costs.  If  it  was  against  him,  or  if  he  did  not  oppose 
the  reviving  of  the  decree,  interrogatories  were  exhibited  for  his 
examination  touching  any  matter  necessary  to  the  proceedings. 
If  he  opposed  the  reviving  of  the  decree  on  the  ground  of  facts 
which  were  disputed,  he  was  also  to  be  examined  upon  interrog- 
atories, to  which  he  might  answer  or  plead  ;  and  issue  being 
joined,  and  witnesses  examined,  the  matter  was  finally  heard  and 
determined  by  the  court.  But  if  there  had  been  any  proceeding 
subsequent   to   the  decree,   this   process   was   ineffectual,  as   it 

8  Mitford's  Equity  Pleading,  ch.  1,  125;  Ferrers  v.  Cherry,  1  Eq.  Cas.  Abr. 
§  3 ;  Ferrers  v.  Cherry,  1  Equity  Cases     3,  4. 

Abridged,  3,  4;  Melius  v.   Thompson,  1  u  Daniell's  Ch.  Pr.    (2d  Am.   ed)  28, 

Cliff.  125.  1701  ;  1  Kyd  on  Corporations,  77. 

9  Mitford's  PI.  ch.  1,  §  3;  Melius  v.  12  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  28  & 
Thompson,  1  Cliff.  125 ;  Ferrere  v.  Cherry,  1701 ;  2  Bac.  Abr.  Corporation,  E.  2. 

1  Eq.  Cas.  Abr.  3,  4.  13  Williams    v.   Cooke,    10   Ves.   406 ; 

10  Mitford's  PI.  ch.  1,  §  3;  Story's  Eq.  Devaynes  v.  Morris,  1  Myl.  &  Cr.  213, 
PI.  §  367;  Melius  v.  Thomson,  1   Cliff.     225. 


§  179.]  DEFINITION   OF   BILLS    OF    REVIVOR.  261 

revived  the  decree  only,  and  the  subsequent  proceedings  would 
not  be  revived  but  by  bill,  and  the  inrollment  of  decrees  being 
now  much  disused,  it  is  become  the  practice  to  revive  in  all  cases 
indiscriminately  by  bill."  1  The  writer  is  not  acquainted  with 
any  instance  of  such  practice  in  the  United  States.  The  only 
methods  of  reviving  a  suit  in  equity  in  the  Federal  courts  seem 
to  be  a  bill  of  revivor,  a  bill  in  the  nature  of  a  bill  of  revivor,  a 
bill  of  revivor  and  supplement,  or  a  supplemental  bill  in  the 
nature  of  a  bill  of  revivor.  It  was  held  in  one  case  that  the 
personal  representatives  of  a  deceased  defendant  may  voluntarily 
come  in  and  be  made  a  party  upon  motion.2  When  a  board  of 
public  officers  was  abolished  by  statute  and  a  new  board  sub- 
stituted for  it,  it  was  held,  without  determining  whether  or 
not  a  revivor  was  necessary,  that  the  members  of  the  new  board 
could  properly  be  made  parties  to  the  suit  by  means  of  a  bill  of 
revivor.3 

§  179.  Definition  of  Bills  of  Revivor  and  Parties  to  the  Same. — 
A  bill  of  revivor  is  a  continuance  of  the  original  bill,  when,  by 
death,  some  party  to  it  has  become  incapable  of  prosecuting  or 
defending  a  suit,  or  a  female  plaintiff  has  by  marriage  incapaci- 
tated herself  from  suing  alone.1  "  Whenever  a  suit  abates  by 
death,  and  the  interest  of  the  person  whose  death  has  caused  the 
abatement  is  transmitted  to  that  representative  which  the  law 
gives  or  ascertains,  as  an  heir-at-law,  executor,  or  administrator ; 
so  that  the  title  cannot  be  disputed,  at  least  in  the  court  of  chan- 
cery, but  the  person  in  whom  the  title  is  vested  is  alone  to  be 
ascertained  ;  the  suit  ma}r  be  continued  by  bill  of  revivor  merely. 
If  a  suit  abates  by  marriage  of  a  female  plaintiff,  and  no  act  is 
done  to  affect  the  rights  of  the  party  but  the  marriage,  no  title 
can  be  disputed  ;  the  person  of  the  husband  is  the  sole  fact  to  be 
ascertained;  and  therefore  the  suit  may  be  continued  in  this  case 
likewise  by  bill  of  revivor  merely."  2  The  persons  who  may  be 
plaintiffs  in  a  bill  of  revivor  have  been  specified  in  a  preceding 
section.3  If  the  abatement  be  caused  by  the  death  or  marriage 
of  a  plaintiff,  all  previous  defendants  to  the  suit  must  be  made 

§  178.   Mitford's  Chancery  Pleadings,  1G4 ;  Allen  v.  The  Mayor,  18  Blatchf.  239 ; 

eh.  1,  §  3.  8.  c.  7  Fed.  R.  483. 

2  Griswold  v.  Hill,  1  Paine,  483.     See         §  179.   »  Mitford's  PL  ch.  1,  §  3;  Fitz- 

U.  S.  R.  S.  §  955.  patrick  v.  Domingo,  14  Fed.  R.  216. 

8  Hemingway  v.  Stansell,  106  U.  S.  2  Mitford's  PL  ch.  1,  §  3. 

399,  402.   See  also  The  Sapphire,  11  Wall.  8  §  177. 


262  BILLS   OF   REVIVOR,   ETC.  [CHAP.  XIV. 

parties  to  the  bill  of  revivor ;  unless  it  be  filed  after  a  decree, 
when  all  whose  rights  or  duties  have  been  fixed  and  ascertained 
thereby  must  be  joined.4  If  any  of  the  previous  plaintiffs  refuse 
to  join  in  the  continuance  of  the  suit,  they  also  must  be  made 
defendants  to  the  bill  of  revivor.6  If  the  abatement  be  caused  by 
the  death  of  a  defendant,  only  his  heirs  or  personal  representa- 
tives, or  both,  according  as  the  suit  affected  his  interest  in  real 
or  personal  property,  should  be  made  defendants  to  the  bill  of 
revivor ; 6  unless  the  bill  be  filed  after  a  decree,  when  all  parties 
interested  thereunder  should  be  joined.7  There  is  no  need  of  any 
difference  of  citizenship  among  the  different  parties  to  such  a  bill, 
provided  that  the  court  had  jurisdiction  of  the  original  suit.8  A 
bill  of  revivor  cannot  be  filed  against  the  representatives  of  a  de- 
fendant not  served  with  process  under  the  original  bill.9  They 
can  only  be  brought  in  by  a  bill  in  the  nature  of  an  original 
bill.10 

§  180.  Frame  of  a  Eill  of  Revivor.  — A  bill  of  revivor  must  state 
the  filing  of  the  original  bill,  and  the  several  proceedings  thereon, 
and  the  abatement ; l  but  it  need  not  set  forth  any  of  the  state- 
ments in  the  original  suit,  unless  the  special  circumstances  of  the 
case  require  it.2  "  It  must  show  a  title  to  revive,  and  charge 
that  the  cause  ought  to  be  revived,  and  stand  in  the  same  condi- 
tion with  respect  to  the  parties  in  the  bill  of  revivor  as  it  was  in  . 
with  respect  to  the  parties  to  the  original  bill  at  the  time  the 
abatement  happened  ;  and  it  must  pray  that  the  suit  may  be  re- 
vived accordingly.  "  3  If  a  bill  of  revivor  seeks  simply  to  revive 
the  suit,  it  prays  only  for  a  subpoena  to  revive.  If  it  requires  an 
answer,  it  should  pray  a  subpoena  to  revive  and  answer.4  This 
is  usually  only  required  in  two  classes  of  cases.  Where  the  bill 
is  filed  against  an  executor  or  administrator,  and  requires  an 
admission  of  assets,  the  prayer  usually  is,  not  only  that  the  suit 
may  be  revived,  but  also  that,  in  case  the  defendant  shall  not  ad- 

4  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  170-%  9  United  States  v.  Fields,  4  Blatclif. 

1704.  326. 

s  Finch  r.Lord  Winehelsea,l  Eq.  Cas.  10  See  §  174. 

Ahr.  2;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  §  180.    »  Mitford's  PI.  ch.  1,  §  3. 

1700.  2  Rule  58. 

6  Bettes    v.    Dana,    2    Sumner,   383;  3  Mitford's  PI.  ch.  1,  §  3. 

Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1704.  4  Mitford's  PI.  ch.   1,  §  3;   Daniell's 

»  Daniell's  Ch.  Pr.  1704.  Ch.  Pr.  (2d  Am.  ed.)  1707. 

8  Clarke  v.  Mathewson,  12  Pet.  164 ; 
s.  c.  2  Sumner,  262. 


§  181.]  PROCEEDINGS   UPON    BILLS   OF   REVIVOR.  263 

mit  assets  to  answer  the  purposes  of  the  suit,  an  account  of  the 
estate  of  the  deceased  party  may  be  taken  ;  "  and  so  far  the  bill 
is  in  the  nature  of  an  original  bill."  5  "  If  a  defendant  to  an 
original  bill  dies  before  putting  in  an  answer,  or  after  an  answer 
to  which  exceptions  have  been  taken,  or  after  an  amendment  of 
the  bill  to  which  no  answer  has  been  given,  the  bill  of  revivor, 
though  requiring  in  itself  no  answer,  must  pray  that  the  person 
against  whom  it  seeks  to  revive  the  suit  may  answer  the  original 
bill,  or  so  much  of  it  as  the  exceptions  taken  to  the  answer  of 
the  former  defendant  extend  to,  or  the  amendment  remaining 
unanswered."6  A  bill  of  revivor  should  be  signed  by  counsel, 
and  in  general  comply  so  far  as  is  practicable  with  the  require- 
ments for  original  bills.7 

§  181.  Proceedings  upon  Bills  of  Revivor.  —  The  Equity  Rules 
provide  that  "  whenever  a  suit  in  equity  shall  become  abated  by 
the  death  of  either  party,  or  by  any  other  event,  the  same 
may  be  revived  by  a  bill  of  revivor,  or  a  bill  in  the  nature  of  a 
bill  of  revivor,  as  the  circumstances  of  the  case  may  require, 
filed  by  the  proper  parties  entitled  to  revive  the  same,  which 
bill  may  be  filed  in  the  clerk's  office  at  any  time  ;  and  upon 
suggestion  of  the  facts,  the  proper  process  of  subpoena  shall,  as 
of  course,  be  issued  by  the  clerk,  requiring  the  proper  represen- 
tatives of  the  other  party  to  appear  and  show  cause,  if  any  they 
have,  why  the  cause  should  not  be  revived.  And  if  no  cause 
shall  be  shown  at  the  next  rule-day  which  shall  occur  after  fourteen 
days  from  the  time  of  the  service  of  the  same  process,  the  suit 
shall  stand  revived,  as  of  course."1  The  Revised  Statutes  pro- 
vide that  "  when  either  of  the  parties,  whether  plaintiff,  peti- 
tioner, or  defendant,  dies  before  final  judgment,  the  executor  or 
administrator  may,  if  the  suit  survives,  prosecute  or  defend  to 
final  judgment.  The  defendant  shall  answer,  and  the  cause 
will  be  heard  and  determined,  and  judgment  rendered  for  or 
against  the  executor  or  administrator.  If  the  executor  or  ad- 
ministrator  neglects  or  refuses  to  become  a  party  twenty  days 
after  being  served  with  a  scire  facias,  the  court  may  nevertheless 
render  judgment  against  the  deceased  party.  The  executor  or 
administrator  on  becoming  a  party  is  entitled  to  a  continuance 

6  Mitford's  PI.  ch.  1,  §  3.  §  181.   1  Rule  50.    See  Oliver  v.  Deca- 

6  Mitford's  PI.  ch.  1.  §  3.  tur,  4  Cranch  C.  C.  592. 

*  Daniell's  Ch.  Pr.  (2d  Am.  cd.)  1707. 


264  BILLS   OF  EEVIVOR,   ETC.  [CHAP.  XIV. 

until  the  next  term."2  The  form  of  the  subpoena  upon  a  bill  of 
revivor  is  the  same  as  that  upon  an  original  bill,  except  that  it 
states  the  nature  of  the  bill  to  which  the  defendant  is  required 
to  appear,  and  the  time  allowed  him  by  the  rules  in  which  to  do 
so.3  The  subpoena  is  also  sued  out  and  served  in  the  same  man- 
ner as  one  upon  an  original  bill;4  but  substituted  service  of  the 
subpoena  upon  the  attorney  of  the  defendant  to  the  original  bill 
may  be  allowed  when  the  original  defendant  is  beyond  the  reach 
of  process.5  But  it  has  been  held  that  a  suit  cannot  be  revived 
against  the  foreign  executor  or  adminstrator  of  a  deceased  de- 
fendant  who  has  not  taken  out  letters  within  the  jurisdiction  of 
the  court,  and  has  no  assets  there.6  If  the  defendant  refuses  to 
appear,  process  of  contempt  may  be  issued  against  him.7  A 
defendant  who  wishes  to  oppose  the  revivor,  should  demur  or 
plead  to  the  bill,  or  perhaps  show  cause  by  affidavit  to  the  con- 
trary.8 Where  an  answer  is  required  that  should  probably  accom- 
pany the  demurrer  or  plea.  It  is  not  expedient  to  take  in  the 
answer  any  objection  to  the  revivor.  For  the  English  rule  was 
that  an  objection  thus  taken  would  not  prevent  the  order  to 
revive,  and  the  point  could  then  only  be  determined  by  bring- 
ing the  cause  regularly  to  a  hearing.9 

A  bill  of  revivor  is  demurrable  if  it  does  not  show  a  sufficient 
ground  for  reviving  the  suit  or  any  part  of  it,  either  by  or 
against  the  person  by  or  against  whom  it  is  filed  ;10  for  want  of 
parties  apparent  upon  its  face,  though  not  for  the  omision  of 
such  as  had  not  appeared  before,  or  were  not  before  the  court  at 
the  time  of  the  abatement ; n  and  for  any  serious  defect  in  form. 
Upon  a  demurrer  to  a  bill  of  revivor,  the  sufficiency  of  the 
original  bill  cannot  be  considered.12  Should  however,  the 
original  bill  fail  to  state  facts  giving  the  Federal  courts  juris- 


2  U.  S.  R.  S.  §  955.     See  Griswold  v.  Lewis  v.  Bridgman,  2  Simons,  465;  Cod- 
Hill,  1  Paine,  483.  rington  v.  Houlditch,  5  Simons,  286. 

3  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1707.  10  Harris  v.  Pollard,  3  P.  Wms.  348; 

4  Darnell's  Ch.  Pr.  (2d  Am.  ed.)  1707.  University   College    v.  Foxcroft,  2   Ch. 

5  Dunn  v.  Clarke,  8  Pet.  1,2  ;  Norton  v.  Rep.  244  ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
Hepworth,  1  Hall&  Tw.  158.    See  §  96.  1709,  1710  ;  Story's  Eq.  PI.  §§  617,  829. 

6  Melius  v.  Thompson,  1  Cliff.  125.  »  Metcalfe  v.   Metcalfe,    1   Keen,  74 ; 

7  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1707.  Crowfoot  v.  Mander,  9  Simons,  396  ;  Dan- 

8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1709,  iell's  Ch.  Pr.  (2d  Am.  ed.)  1710. 

1710;  Rule  58.  12  Mason  v.  Hartford,  P.  &  F.  Ry.  Co., 

9  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1709,  19  Fed.  R.  53,  55;  Sharon   v.  Terry,  36 
1711;  Harris  v.  Pollard,  3  P.  Wms.  348;  Fed.  K.  337. 


§  181.]  PROCEEDINGS   UPON   BILLS    OF   REVIVOR.  265 

diction,  that  objection  may  be  raised  by  a  demurrer  to  the  bill 
of  revivor.13  If  a  bill  of  revivor  be  brought  without  sufficient 
cause  to  revive,  and  this  be  not  apparent  upon  its  face,  or  if 
the  plaintiff  is  not  entitled  to  revive  the  suit  at  all,  though  a 
title  is  stated  in  the  bill  so  that  it  is  not  demurrable,  the  de- 
fendant may  set  up  his  objections  to  it  by  plea.14  The  running 
of  the  statute  of  limitations  after  the  time  when  a  person  became 
entitled  to  revive  is  also  in  most  cases,  except  after  a  decree  for 
an  account,15  a  defense  and  a  bar  to  a  bill  of  revivor,  which  may 
be  set  up  by  plea.ld  No  plea  can  be  put  in  against  a  bill  of 
revivor  which  has  been  pleaded  to  the  original  bill  and  over- 
ruled, although  if  a  plea  has  been  put  in  and  the  suit  abated 
before  argument,  it  may  subsequently  be  pleaded  anew  to  the 
original  bill.17  When  an  answer  to  a  bill  of  revivor  is  required, 
it  must  be  confined  to  such  matters  as  are  called  for  by  the  bill, 
or  as  would  be  material  to  the  defense  with  reference  to  the 
order  made  upon  it.18  Allegations  which  might  have  been 
pleaded  before  abatement  to  the  original  bill  will  be  considered 
as  impertinent,19  and  disregarded.20  It  will  not,  however,  be  im- 
pertinent, if  it  states  matters  of  defense  which  have  occurred 
since  the  answer  to  the  original  bill  was  filed,  though  these  do 
not  affect  the  title  of  the  plaintiff  to  revive.21  Such  an  answer 
is  impertinent  when  it  describes  and  complains  of  irregularities 
in  the  suit  before  the  abatement.22  Such  an  answer  should  be 
signed  by  counsel;23  and  exceptions  will  lie  to  it  for  insufficiency, 
scandal,  and  impertinence.24  If  it  does  not  admit  the  plaintiff's 
title  to  revive  or  state  any  circumstances  which  he  is  desirous  of 
controverting,  it  must,  if  the  abatement  has  taken  place  after 
decree  or  issue  joined  in  the  original  cause,  be  replied  to.25 
Otherwise,  a  separate  replication  will  be  unnecessary,  and  one 
replication  will  put  in   issue  both   the   allegations  in   that  and 

13  Sharon  v.  Terry,  36  Fed.  It.  337.  18  Daniell's  Ch.  Pr.  (2d  Am  ed.)  1711  ; 

14  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1710;     Story's  Eq.  PI.  §  808  a. 

Lewis  v.  Bridgman,  2  Simons,  465.  19  Nanney  v.  Tottey,  11  Price,  117. 

15  Hollingshead's  Case,  1  P.  Wms.  742;       *°  Gunnell  v.  Bird,  10  Wall.  304,  308; 
Darnell's  Ch.  Pr.  (2d  Am.  ed.)  1711.  Fretz  v.  Stover,  22  Wall.  198,  204. 

16  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1710;        21  Langley  v.  Overton,  10  Simons,  345. 
Coit  v.  Campbell,  82  N.  Y.  509  ;  Perry  v.       -2  Wagstaff  v.  Bryan,  1  It.  &  M.  28. 
Jenkins,  1  Myl.  &  Cr.  122;  Mason  v.  Hart-       23  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1712. 
ford,  P.  &  F.  Ry.  Co.,  19  Fed.  It.  53,  50;       ~*  Wagstaff  v.  Bryan,   1  R.  &  M.  28  : 
Story's  Eq.  PI.  §  831.  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1712. 

17  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1711.  25  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1712. 


266  BILLS   OF   REVIVOR,   ETC.  [CHAP.  XIV. 

those  iii  the  original  answer.26  In  all  other  respects,  the  form 
and  the  proceedings  upon  demurrers,  pleas,  and  answers  to  bills 
of  revivor  should  conform  as  nearly  as  possible  to  those  of  and 
upon  similar  pleadings  to  original  bills.27  A  bill  of  revivor  need 
not  be  set  down  for  a  hearing,  unless  it  prays  other  relief  than  a 
mere  revivor.28  Where  a  bill  of  revivor  seeks  merely  an  ad- 
mission of  assets  and  a  revivor,  and  the  defendant  admits  assets, 
the  cause  may  proceed  upon  the  order  of  revivor  merely.29  If, 
however,  any  issue  is  joined  upon  the  answer  to  it,  a  hearing 
will  be  necessary.30  The  sole  questions  before  the  court  when  a 
bill  of  revivor  is  filed  are  the  competency  of  the  parties  by  and 
against  whom  it  is  filed,  and  the  frame  of  the  bill.31  A  cause  is 
not  revived  until  an  order  of  revivor  has  been  entered.32 

§  182.  Bills  in  the  Nature  of  Bills  of  Revivor  in  general.  —  A  bill 
in  the  nature  of  a  bill  of  revivor  is  a  bill  filed  "  to  obtain  the 
benefit  of  a  suit  after  abatement  in  certain  cases  which  do  not 
admit  of  a  continuance  of  the  original  bill."  1  "  If  the  death  of  a 
party  whose  interest  is  not  determined  by  his  death  is  attended 
with  such  a  transmission  of  his  interest  that  the  title  to  it,  as 
well  as  the  person  entitled,  may  be  litigated  in  the  court  of  chan- 
ceiy,"  as  in  the  case  of  a  devise2 or  conveyance3  of  real  estate, 
"•the  suit  is  not  permitted  to  be  continued  by  a  bill  of  revivor. 
An  original  bill  upon  which  the  title  may  be  litigated  must  be 
filed,  and  this  bill  will  so  far  have  the  effect  of  a  bill  of  revivor 
that  if  the  title  of  the  representative  substituted  by  the  act  of 
the  deceased  party  is  established,  the  same  benefit  may  be  had 
of  the  proceedings  upon  the  former  bill  as  if  the  suit  had  been 
continued  by  a  bill  of  revivor." 4  "  The  bill  is  said  to  be  original 
merely  for  want  of  that  privity  between  the  party  to  the  former 
and  the  party  to  the  latter  bill,  though  claiming  the  same  in- 
terest, which  would  have  permitted  the  continuance  of  the  suit 
by  bill  of  revivor.     Therefore,  when  the  validity  of  the  alleged 

26  Catton  v.  Earl  of   Carlisle,  5  Macld.       31  Bettes  v.  Dana,  2  Sumner,  383. 
427 ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1712.         82  Atterbury  v.  Gill,  13  Off.  Gaz.  276. 

2?  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1711,        §  182.   i  Mitford  PI.  ch.  1,  §  3.     See 

17!2.  Slack   v.    Walcott,  3   Mason,    508,   512; 

28  Pruen  v.  Lunn,  5  Russ.  3  ;  Daniell's  Sharon  v.  Terry,  36  Fed.  R.  337,  353. 
Ch.  Pr.  (2d  Am.  ed.)  1713.  2  Slack  v.  Walcott,  3  Mason,  508. 

29  Mitford's   PI.    ch.  1,    §  3;    Daniell's         3  Sharon  v.  Terry,  36  Fed.  R.  337. 
Ch.  Pr.  (2d  Am.  ed.)  1713.  4  Mitford's  PI.  ch.  1.  §  3.    See  Slack  v. 

m  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1713 ;     Walcott,  3  Mason,  508. 
Mitford's  PL  ch.  1,  §  3. 


§  183.]      FRAME  OF  BILLS  IN  THE  NATURE  OF  BILLS  OF  REVIVOR.     267 

transmission  of  interest  is  established,  the  party  to  the  new  hill 
shall  be  equally  bound  by,  or  have  advantage  of  the  proceedings 
in  the  original  bill,  as  if  there  had  been  such  a  privity  between 
him  and  the  party  to  the  original  bill  claiming  the  same  interest; 
and  the  suit  is  considered  as  pending  from  the  time  of  the  filing 
of  the  original  bill,  so  as  to  save  the  statute  of  limitations,  to 
have  the  advantage  of  compelling  the  defendant  to  answer 
before  an  answer  can  be  compelled  to  a  cross-bill,  and  every 
other  advantage  which  would  have  attended  the  institution  of 
the  suit  by  original  bill,  if  it  could  have  been  continued  by  bill 
of  revivor  merely."  5  So  the  pleadings  filed  and  any  testimony 
taken  in  the  original  cause  can  be  used  in  the  same  manner  in 
the  second  cause  after  a  bill  in  the  nature  of  a  bill  of  revivor 
has  been  filed.6  Such  a  bill  can  only  be  filed  for  the  purpose 
of  bringing  in  a  person  who  claims  in  privity  with  the  party 
whose  death  caused  the  abatement.7  Thus,  if  a  bill  is  filed  by  a 
devisee  under  a  will,  and  afterwards  a  subsequent  will  is  proved, 
the  devisee  under  the  second  will  can  in  no  way  avail  himself  of 
the  proceedings  in  the  suit ;  for  there  is  no  privity  between  him 
and  the  original  plaintiff.  If,  however,  a  bill  has  been  filed  by 
the  devisor  himself  for  some  matter  concerning  the  estate  de- 
vised, the  second  devisee  may  file  a  supplemental  bill  in  the 
nature  of  a  bill  of  revivor,  even  if  the  first  devisee  have  already 
filed  such  a  bill;  for  he  derives  his  title  to  do  so  solely  from 
the  devisor  independently  of  the  first  devisee.8  When  the  court 
had  jurisdiction  of  the  original  suit,  a  want  of  difference  of 
citizenship  between  the  parties  to  the  bill  in  the  nature  of  a  bill 
of  revivor  will  not  be  a  defect  in  it.9 

§  183.  Frame  of  Bills  in  the  Nature  of  Bills  of  Revivor  and  Pro- 
ceedings upon  them.  —  A  bill  in  the  nature  of  a  bill  of  revivor 
"  must  state  the  original  bill,  the  proceedings  upon  it,  the  abate- 
ment, and  the  manner  in  which  the  interest  of  the  party  dead 
has  been  transmitted ;  and  it  must  charge  the  validity  of  the 
transmission,  and  state  the  rights  which  have  accrued  by  it."  1 

6  MitforcTs  PI.  ch.  1,  §  3.  8  Oldham    v.    Eboral,    Cooper    Select 

6  Slack  v.  Walcott,  3  Mason,  508  ;  Vat-  Cases,  27. 

tier  i'.  Hinde,  7  Pet.  252,  266;  Story's  Eq.  9  Clarke   v.   Mathevvson,  12  Pet.  164; 

PI.    §§   371-387;   Daniell's   Ch.   Pr.    (2d  s.  c.  2  Sumner,  262;    Minnesota  Co.  v. 

Am.  ed.)  1719.  St.  Paul  Co.,  2  Wall.  600. 

1  Darnell's  Ch.  Pr.  1720 ;  Story's  Eq.  PI.  §  183.   »  Mitford's  Eq.  PI.  ch.  1,  §  3. 
§  385  ;  Rylands  v.  Latouche,  2  Bligh,  585 ; 
Tonkin  v.  Lethbridge,  G.  Cooper,  43. 


268  BILLS   OF   REVIVOR,   ETC.  [CHAP.  XIV. 

It  usually  prays  that  the  original  suit  may  be  revived,  and  the 
party  filing  it  have  the  benefit  of  the  former  proceedings  therein.2 
Probably  a  subpoena  issued  in  accordance  with  its  prayer  may  be 
served  upon  the  attorney  of  an  absent  defendant,  who  had 
already  appeared,  in  the  same  manner  as  a  subpoena  upon  a  bill 
filed  to  stay  proceedings  at  law.3  Otherwise  the  form  and  the 
proceedings  upon  bills  in  the  nature  of  bills  of  revivor  are  the 
same  as  those  upon  bills  of  revivor;  4  and  the  difference  between 
the  two  is  practically  one  of  mere  nomenclature.5 

§  184.  Bills  of  Revivor  and  Supplement.  —  A  bill  of  revivor  and 
supplement  is  a  bill  which  revives  a  suit  after  an  abatement,  and 
at  the  same  time  supplies  a  defect  which  has  arisen  in  it  since  its 
institution.1  Thus,  where  by  the  death  of  a  defendant  new  rights 
accrue  to  the  plaintiffs,  a  bill  of  revivor  and  supplement  is  neces- 
sary to  state  those  rights;2  and  where,  in  a  suit  to  restrain  the 
infringement  of  a  patent,  the  complainant  assigned  his  interest 
and  died,  it  was  held  improper  for  the  assignee  to  revive  the  suit 
by  a  bill  of  revivor,  the  court  saying  that  a  "  supplemental  bill," 
but  evidently  intending  thereby  a  bill  of  revivor  and  supplement, 
must  be  filed.3  It  has  been  held  in  England  that  by  such  a  bill 
a  defect  apparent  upon  the  face  of  the  original  bill  cannot  be 
cured.4  A  bill  of  revivor  and  supplement  is  merely  a  compound 
of  a  bill  of  revivor  and  a  supplemental  bill,  and  in  its  separate 
parts  must  be  framed  and  proceed  in  the  same  manner.5  It 
seems  that  it  may  be  held  good  as  to  the  revivor,  and  bad  as  to 
the  supplemental  matter.6  All  parties  to  the  original  bill  should 
be  made  parties  to  a  bill  of  revivor  and  supplement,  although  a 
revivor  is  sought  against  but  one  defendant.7 

§  185.  Supplemental  Bills  in  the  Nature  of  Bills  of  Revivor.  —  A 
supplemental  bill  in  the  nature  of  a  bill  of  revivor  is  a  bill  filed 
to  cure  an  abatement  when  the  person  by  or  against  whom  the 

2  Daniell's  Ch.  Pr.  1721 ;   Story's  Eq.  8  Metal  Stamping  Co.  v.  Crandall,  18 
PI.  §  386.  Off.  Gaz.  1531. 

3  Norton  v.  Hepwortli,  1    Hall  &  Tw.  *  Bampton   v.  Birchall,  5  Beav.  330; 
158  ;  Dunn  v.  Clarke,  8  Pet.  1,  2.      See  8.  c.  on  appeal,  1  Phil.  568. 

§  96.  5  Mitford's  PI.  ch.  1,  §  3 ;  Story's  Eq. 

*  Daniell's  Ch.  Pr.  1720, 1721 ;  Rule  56.  PI.  §§  387,  627;   Daniell's  Ch.  Pr.  1722, 

6  Grew  v.  Breed,  12  Met.  (Mass.)  369.  1723;  Pendleton  v.  Fay,  3  Paige  (N.  Y.j, 

§  184.   i  Mitford's  PL  ch.  1,  §  2 ;  Story's  204. 

Eq.  PI.  §§  387,  627  ;  Daniell's  Ch.  Pr.  (2d  6  Randolph  f.  Dickerson,  5  Paige(N.Y.), 

Am.  ed  )  1722,  1723.  517.   But  see  Bampton  v.  Birchall,  5  Beav. 

2  Westcott  v.  Cady,  5  J.  Ch.   (N.  Y.)  330;  s.  c.  on  appeal,  1  Phil.  568. 

334,  342.  7  Lake  v.  Austwick,  4  Jur.  314. 


§  186.]  WHAT   RENDERS    A   SUIT   DEFECTIVE.  2G9 

suit  is  to  be  continued,  although  claiming  under  the  individual 
whose  death  caused  the  abatement,  is  not  the  representative 
whom  the  law  allows  to  be  recognized,  but  is  one  whose  title 
could  not  have  been  litigated  in  the  English  Court  of  Chancery, 
but  might  have  been  disputed  before  another  tribunal.1  It 
has  also  been  held  that  where  during  the  pendency  of  a  suit  a 
trustee  died,  and  the  court  appointed  a  successor  to  him,  the 
new  trustee  could  only  be  brought  in  by  a  supplemental  bill  in 
the  nature  of  a  bill  of  revivor.2  Upon  the  death  of  an  assignee 
in  bankruptcy  or  insolvency  his  successor  is  brought  in  by  a  bill 
of  this  character.3  Such  a  bill,  however,  although  designated 
as  being  in  the  nature  of  a  bill  of  revivor,  is  neither  more  nor 
less  than  a  supplemental  bill.4 

§  186.  What  renders  a  Suit  defective.  —  If,  after  the  institution 
of  a  suit  in  equity,  a  person  who  is  a  necessary  party  thereto 
comes  into  being,  or  any  other  event  occurs,  which,  without 
abating  the  suit,  occasions  such  an  alteration  in  the  interest  of 
any  of  the  original  parties,  or  gives  any  person  not  a  party  such 
an  interest  therein,  as  makes  it  necessary  that  the  change  of  in- 
terest shall  be  brought  to  the  attention  of  the  court,  and  the  per- 
son not  already  a  party  brought  before  it,  the  suit  is  said  to  become 
defective.1  The  circumstances  causing  the  change  of  interest 
must  then  be  alleged,  and  the  new  party  brought  in  by  a  supple- 
mental bill,  or  a  bill  in  the  nature  of  a  supplemental  bill.2  An 
assignment,  whether  voluntary3  or  by  operation  of  law,4  during 
the  pendency  of  a  suit,  of  the  whole  or  a  part  of  a  party's  interest 
therein,  does  not  make  the  suit  defective,  nor  affect  the  rights  of 
the  other  parties,  since  the  assignee  takes  the  same  rights  and  is 
subject  to  the  same  obligations  as  his  assignor,  and  is  equally 
bound  or  benefited  by  the  decree.  The  assignee  need  not,  there- 
fore, be  made  a  party,5  unless  the  assignment  disables  the  assignor 
from  performing  the  decree  of  the  court,  when  he  should  be 
brought  before  it ; 6  but  he  may  at  any  time  be  brought  in  at  his 

§185.   i  Daniell's  Ch.  Pr.  (2dAm.ed.)  PI.   ch.   1,   §   3;    Daniell's   Ch.   Pr.   (2d 

1721.  Am.  ed.)   16G3. 

2  Greenleaf  v.  Queen,  1  Pet.  138,  148.  3  Ex  parte  Railroad  Co.,  95  U.  S.  221. 

8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1721.  4  Hewett    v.    Norton,    1    Woods,    68; 

4  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1721.  Eyster  v.  Gaff,  91  U.  S.  521. 

§186.   i  Jones   v.  Jones,  3  Atk.  217;  8  Eyster  v.  Gaff.  91  U.  S.  521 ;  Ex  parte 

Mitfnrd's  PI.  ch.  1,  §  3  ;  Daniell's  Ch.  Pr.  Railroad  Co.,  95  U.  S.  221. 

(2d  Am.  ed.)  1663.  6  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1G64. 

2  Jones  v.  Jones,  3  Atk.  217  ;  Mitford's 


270  BILLS    OF   REVIVOE,    ETC.  [CHAP.  XIV. 

own  request."  In  a  case  in  admiralty,  it  was  held  that  a  suit 
brought  in  the  name  of  Napoleon  III.,  on  account  of  an  injury  to 
property,  —  a  French  ship  held  by  him  in  his  sovereign  capa- 
city,—  did  not  abate  by  his  deposition  and  the  succession  of  the 
French  Republic  to  the  French  Empire,  and  that  the  name  of 
the  plaintiff  could  at  any  time  be  changed  by  order.8 

§  187.  Supplemental  Bills.  —  A  supplemental  bill,  according  to 
Lord  Redesdale,  is  merely  an  addition  to  the  original  bill.1  At  first 
supplemental  bills  were  filed,  not  only  for  the  purposes  mentioned 
in  the  last  section,  but  also  to  supply  such  defects  as  might  have 
been  cured  by  amendment  after  the  time  to  perfect  a  bill  by 
amendment  had  expired.2  Now,  however,  that  amendments  may 
be  allowed  at  any  stage  of  a  suit,3  they  are  no  longer  used  for 
that  purpose ;  and  as  the  fact  that  the  matter  pleaded  in  a  sup- 
plemental might  have  been  inserted  in  the  original  bill  by  amend- 
ment, was  also  a  good  ground  of  demurrer,4  it  is  very  doubtful 
whether  they  could  be  any  longer  so  used.5  When  an  event 
happens  subsequently  to  the  filing  of  an  original  bill  which  gives 
a  new  interest  in  the  matter  in  dispute  to  any  person,  whether  or 
not  already  a  party,  without  depriving  all  of  the  original  plain- 
tiffs suing  in  their  own  right  of  their  interest,  the  defect  arising 
from  this  event  may  be  supplied  by  a  supplemental  bill.6  A  re- 
mainder-man may  also,  in  this  same  manner,  be  made  a  party  to  a 
suit  brought  by  or  against  a  tenant  in  tail  upon  the  determination 
of  the  latter's  estate,  and  the  acquisition  by  the  former  of  the 
present  interest  to  the  property  in  litigation.7  A  supplemental 
bill  which  brings  in  a  new  party  may  be  original  as  to  him,  but 
supplemental  as  to  the  rest.8  If,  pending  a  suit,  a  tenant  in  tail 
of. an  estate  thereby  affected  by  it  is  born;9  or  if  pending  a  suit 
against  a  husband  and  wife   concerning  the  latter's  estate,  the 

"  Foster  i>.  Deacon,  Mad.  &  Geld.  59;         8  Rule  29. 
Evster  v.  Gaff,  91   U.  S.  521  ;    Ex  parte         4  Mitford's  PI.  ch.  2,  §  2,  part  1;  Dan- 

Uailroad  Co.,  95  U.  S.  221,  226.  iell's  Ch.  Pr.  (2d  Am.  ed.)  1681. 

8  The    Sapphire,    11    Wall.    164.      See         5  See,  however,  Davies  v.  Williams,  1 

Allen  v.  The  Mayor,  7  Fed.  R  483;  s.  c.  Simons,  5. 

18  Rlatchf.  239 ;  Hemingway  v.  Stansell,         6  Hobson  v.  McArthur,  10   Pet.  182; 

1(10  U.  S.  399,  402.  Daniell's  Ch.  Pr.  1603-1675;  Story's  Eq. 

§  187.   i  Mitford's  PI.  ch.  1,  §  2.  PI.  §§  336-343  ;  Mitford's  PI.  ch.  1,  §  3. 

2  Mitford's  PI.  ch.  1,  §  3;  Daniell's  Ch.         7  Lloyd  v.  Johnes,  9  Ves.  37 ;  Daniell's 

Pr.  (2d  Am.  ed.)  1653-1063;  Story's  Eq.  Ch.  Pr.  (2d  Am.  ed.)  1608-1672. 
PI.  §  334 ;   Jenkins  v.  Eldredge,  3  Story,         8  Mitford's  PI.  ch.  1,  §  3. 
299;   Mosgrove  v.  Kountze,  14  Fed.   R.         9  Mitford's  PI.  ch.  1,  §  3. 
315. 


§  187.]  SUPPLEMENTAL    BILLS.  271 

man  dies,  and  the  wife  thus  acquires  a  new  interest ; 10  or  if  one 
of  two  or  more  plaintiffs  suing  in  their  own  right  is  entirely 
deprived  of  his  interest,  by  any  other  event  than  an  assignment 
of  it : u  or  if  the  interest  of  a  sole  plaintiff  suing  in  a  representa- 
tive capacity  entirely  determines  by  death  or  otherwise,  and 
some  other  person  becomes  entitled  to  the  same  property  under 
the  same  title,12  —  the  defect  in  the  suit  thereby  occasioned  must 
be  cured  by  a  supplemental  bill.  So,  if  pending  a  suit  a  party 
becomes  a  lunatic,  or  if  pending  a  suit  by  or  against  a  lunatic 
and  his  committee  a  new  committee  is  appointed,  the  committee 
should  be  brought  in  by  a  supplemental  bill.13  According  to 
Lord  Redesdale,  upon  the  death  of  one  suing  in  behalf  of  himself 
and  others  in  the  same  position  with  him,  if  his  representative 
do  not  choose  to  file  a  bill  of  revivor,  any  one  of  the  class  on 
behalf  of  whom  he  sued  may  revive  ; 14  but  it  seems  that  the  more 
proper  course  would  be  for  the  one  wishing  to  continue  the  suit 
to  do  so  by  means  of  a  supplemental  bill,  which  he  can  only 
obtain  leave  to  file  upon  notice  to  the  representatives  of  the 
deceased  plaintiff,  as  well  as  to  the  defendants.15  Where,  how- 
ever, a  suit  brought  by  one  in  a  representative  capacity  becomes 
defective  by  his  death,  and  another  acquires  the  right  to  continue 
it  under  a  different  title,  —  as  upon  the  death  of  an  executor  or 
administrator  succeeded  by  an  administrator  de  bonis  non, 
according  to  Lord  Redesdale  and  Daniell,  the  latter  may  con- 
tinue by  a  bill  of  revivor,10  according  to  Judge  Story,  only  by 
a  bill  in  the  nature  of  a  bill  of  revivor ; 17  in  no  case  by  a  sup- 
plemental bill.  A  supplemental  bill  must  not  be  inconsistent 
with  the  original  bill.  Thus,  where  the  original  bill  stated 
that  the  defendants  claimed  to  be  a  corporation,  but  were  not 
incorporated,  it  was  held  improper  to  file  a  supplemental  bill 
claiming  relief  upon  the  ground  that  the  defendants  were  a 
corporation.18 

10  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1663.  Sim  &  S.  401 ;  Dixon  v.  Wyatt,  4  Madd. 

11  Mitford's  PI.  ch.l,  §  3;  Daniell'sCh.  892 ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1071, 
Pr.  (2d  Am.  ed.)  1664.  1G72;  Story's  Eq.  PI.  §  365. 

12  Mitford's  PI.  ch.  1,  §  3 ;  Daniell's  Ch.  1S  Mitford's  PI.  ch.  1,  §  3  ;  Daniell's  Ch. 
Pr.  (2d  Am.  ed.)  1665;  Marriott  v  Tarp-  Pr.  (2d  Am.  ed.)  1665;  Owen  v.  Curzon, 
ley,  9  Simons,  279.  2  Vern.  237  ;   Iluggins  v.  York  Buildings 

13  Mitford's  PI.  ch.  1,  §  3  ;  Daniell's  Ch.  Co.,  2  Eq.  Ahr.  .".,  pi.  14. 

Pr.  (2d  Am.  ed.)  1664.  "  Story's  Eq.  PI.  §  382,  n.  1. 

14  Mitford's  Pi.  ch.  1,  §  3.  is  Maynard  v.  Green,  30  Fed.  R.  643. 
16  Houlditch  v.   Marquis  Donncgall,  1 


272  BILLS   OF  REVIVOK,   ETC.  [CHAP.  XIV. 

§  188.  Parties  and  Frame  of  a  Supplemental  Bill. — As  a  general 
rule,  all  parties  to  the  original  suit  must  be  made  such  to  a  sup- 
plemental bill  filed  to  supply  a  defect  in  it ; :  unless  such  a  bill 
be  filed  to  bring  in  a  mere  formal  defendant,  or  to  allege  matter 
which  cannot  possibly  affect  a  decree  against  more  than  one 
defendant,  when  the  others  need  not  be  made  parties  to  it.2  An 
objection  for  want  of  parties  must,  however,  be  made  by  demurrer, 
plea,  answer,  or  when  the  motion  for  leave  to  file  the  bill  is 
argued.  It  will  be  too  late  to  make  it  at  the  hearing.3  If  the 
court  had  jurisdiction  of  the  original  bill  it  will  take  jurisdiction 
of  the  supplemental  bill,  no  matter  what  may  be  the  citizenship 
of  the  new  parties  ;4  provided  at  least  that  they  have  a  right  to 
sue  and  be  sued  in  a  Federal  court.5  "  A  supplemental  bill  must 
state  the  original  bill,  and  the  proceedings  thereon,  and  if  the 
supplemental  bill  is  occasioned  by  an  event  subsequent  to  the 
original  bill,  it  must  state  that  event,  and  the  consequent  alter- 
ation with  respect  to  the  parties.6  The  equity  rules  provide, 
that  it  shall  not  be  necessary  in  any  supplemental  bill  to  set 
forth  any  of  the  statements  in  the  original  suit,  unless  the  special 
circumstances  of  the  case  require  it."  7  This,  however,  although 
copied  from  an  English  Chancery  order,8  is  merely  a  reaffirmance 
of  the  pre-existing  practice.9  If  the  bill  brings  in  no  new  party, 
there  is  never  any  need  of  its  containing  any  of  the  statements 
in  the  original  pleadings.10  When,  however,  it  brings  in  a  new 
party,  as  it  is  in  fact  original  as  to  him,  it  must  state  enough  of 
the  former  proceedings  to  show  an  equity  against  him.11  This 
need  not  be  averred  positively ;  but  it  will  be  sufficient  to  state 
that  such  matters  were  alleged  in  the  former  bill  or  answer,12 
and  only  so  much  of  the  original  pleadings  need  be  averred  as 

§  188.  1  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  Tramway  Company  of  Omaha,  33  Fed.  R. 

1678  ;  Jones  v.  Jones,  3  Atk.  217  ;  Dyson  689. 

v.  Morris,  1  Hare,  413 ;  Jones  v.  Howells,  6  Mitford's  PL  ch.  1,  §  3. 

2  Hare,  342.  7  Rule  58. 

2  Greenwood  v.  Atkinson,  5  Simons,  s  See  Order  49  in  Chancery,  of  August, 
419 ;  Dyson  v.  Morris,  1  Hare,  413 ;  Wil-  1841. 

kinson  v.  Fowkes,  9  Hare,  193;  Story's  9  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1675- 

Eq.  PI.  §  343.  1678. 

3  Jones  v.  Jones,  3  Atk.  217.  i0  Daniell's     Ch.    Pr.    (2d    Am.    ed.) 
*  Minnesota   Co.   v.   St.   Paul   Co.,  2  1675. 

Wall.  609.     See  §  21.  u  Baldwin  t>.  Mackown,  3  Atk.  817; 

5  See  Adams  Express  Co.  v.  Denver  Daniell's  Ch.  Pr.  (2d  Am. ed.)  1675,1676. 

&  R.  G.  Railway  Co.,  16  Fed.  R.  712;  n  Lloyd  v.  Johnes,  9  Ves.  37 ;  Daniell's 

Omaha  Horse  Railway  Company  v.  Cable  Ch.  Pr.  (2d  Am.  ed.)  1676. 


§  189.]  PROCEEDINGS   UPON   SUPPLEMENTAL    BILLS.  273 

suffice  to  show  an  equity  against  the  new  party.13  The  prayer 
of  a  supplemental  bill  is  adapted  to  the  object  for  which  it  is 
exhibited.  It  formerly  always  concluded  with  a  prayer  for  pro- 
cess in  the  usual  form.14  Whether  this  is  now  necessary  when 
no  new  defendants  are  brought  in  may  be  doubted.15  It  should 
be  signed  by  counsel,  and,  in  other  respects,  conform  to  the  form 
of  an  original  bill.16  A  supplemental  bill  may  be  filed  at  any 
time  during  the  progress  of  a  suit;  as  well  after  as  before  a 
decree,17  and  even  dining  the  pendency  of  an  appeal.18  It  seems, 
however,  that  if  the  matters  which  make  it  necessary  or  advisa- 
ble were  known  to  the  party  filing  it  before  the  entry  of  the 
decree,  afterwards  it  will  be  too  late ; 19  though  such  an  objec- 
tion must  be  taken  before  the  hearing  upon  the  supplemental 
bill.20 

§  189.  Proceedings  upon  Supplemental  Bills.  —  "Whenever  any 
suit  in  equity  shall  become  defective  from  any  event  happening 
after  the  filing  of  the  bill  (as,  for  example,  by  change  of  interest 
in  the  parties),  or  for  any  other  reason  a  supplemental  bill,  or  a 
bill  in  the  nature  of  a  supplemental  bill,  may  be  necessary  to  be 
filed  in  the  cause,  leave  to  file  the  same  may  be  granted  by  any 
judge  of  the  court  on  any  rule-day,  upon  proper  cause  shown 
and  due  notice  to  the  other  party.  And  if  leave  is  granted  to 
file  such  a  supplemental  bill,  the  defendant  shall  demur,  plead, 
or  answer  thereto,  on  the  next  succeeding  rule-day  after  the  sup- 
plemental bill  is  filed  in  the  clerk's  office,  unless  some  other  time 
shall  be  assigned  by  a  judge  of  the  court."1  The  petition  for 
leave  to  file  such  a  bill  need  not  state  the  averments  which  are 
intended  to  be  inserted  therein  ;  but  must  state  sufficient  to 
advise  the  opposite  parties  and  the  court  of  the  ground  upon 
which  the  relief  is  sought.2  It  has  been  held  that  upon  the 
return  of  the  order  to  show  cause  an  objection  which  is  a  proper 

13  Vigers  v.  Lord  Audley, 9  Simons,  72;  Woodward,  1  Dickons,  33;  Dormer  v. 
Attorney-General  v.  Foster,  2  Hare,  81  ;     Fortescue,  3  Atk.  124. 

Daniell's  Ch.  Pr.  (2d  American  ed.)  1676,  18  Woodward  v.  Woodward,  1  Dickens, 

1677.  33. 

14  Daniell's  Ch.  Pr.  1680.  19  Pendleton  v.  Fay,  3  Paige  (N.  Y. ) 

15  See  Shaw  v.  Bill,  95  U.  S.  10.  204 ;  Story's  Eq.  PI.  §  338  a. 

J6  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1680.  »  Fulton  Bank  r.  New  York  &  Sharon 

«  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1659,  Canal  Co.,  4  Paige  (N.  Y.),  127. 

1660;    Story's    Fq.  PI.   §§    338,    338  a;  §189.    *  Rule  57. 

2  Barbour'^  Ch.Pr.  167;  6'IIara  v.  Shep-  2  Parkhurst  v.   Kinsman,  2  Blatchf. 

herd,  3  Maryland  Ch.  Dee.  806;  Jenkins  C.  C.  72. 

v.  Eldredge,  3  Story,  209;  Woodward  v. 

18 


274  BILLS   OF  REVIVOR,   ETC.  [CHAP.  XIV. 

ground  for  a  demurrer  cannot  be  raised.3  A  motion  will  not  lie 
to  take  a  supplemental  bill  off  the  file  for  irregularity,  upon  the 
ground  that  it  does  not  state  supplemental  matter.4  The  proper 
course  in  such  a  case  is  to  demur,  or  to  object  to  the  order  allow- 
ing it  to  be  filed.5  Such  a  motion  might,  however,  be  granted,  if 
a  bill  filed  should  be  different  from  that  which  the  order  allowed. 
No  subpoena  need  be  issued  upon  such  a  bill  unless  new  defend- 
ants are  to  be  brought  in  ;  and  then  they  only  need  be  served 
with  process.6  Such  a  subpoena  is  in  the  same  form  as  one 
issued  upon  the  filing  of  an  original  bill,  except  that  it  speci- 
fies the  nature  of  the  bill  upon  which  it  is  issued.7  A  de- 
murrer to  a  supplemental  bill  is  in  general  subject  to  the 
same  rules,  except  as  to  the  time  of  filing  the  same,  and  will 
lie  for  the  same  reasons  as  if  the  bill  were  original  ;8  but  there 
are  some  grounds  of  demurrer  peculiar  to  bills  of  this  class. 
Thus,  a  demurrer  will  lie  if  it  appears  upon  the  face  of  the 
bill  that  it  pleads  matters  which  occurred  before  the  institution 
of  the  suit,  and  which  it  is  not  too  late  to  insert  by  amendment 
into  the  original  bill.9  A  supplemental  bill  is  also  demurrable 
when  filed  to  introduce  a  claim  founded  upon  a  title  entirely 
distinct  from  that  in  the  original  bill ;  as,  when  a  man  first  sued 
claiming  as  heir-at-law,  and  afterwards  sought  by  supplemental 
bill  to  plead  a  purchase  of  the  interest  of  the  true  heir-at-law.10 
A  supplemental  bill  is  also  demurrable,  if  it  is  brought  against  a 
person  who  neither  has  nor  claims  any  interest  in  the  subject- 
matter  of  the  original  suit.11  In  a  suit  to  restrain  the  infringement 
of  a  patent,  "  where  the  patent  expires  and  is  extended  pending 
the  litigation,  and  the  infringement  by  the  respondent  is  con- 
tinued in  respect  to  the  extended  patent,  a  supplemental  bill  is  a 
proper  pleading  to  prolong  the  suit,  as  in  that  state  of  the  case 
the  complainant  may  well  claim,  if  he  is  the  original  and  first 
inventor  of  the  improvement,  to  recover  of  the  respondent  the 

3  Oregon  &  Transcontinental  Co.  v.  8  DanielPs  Ch.  Pr.  (2d  Am.  ed.)  1681. 
Northern  Pacific  Ry.  Co.,  32  Fed.  R.  428.  9  Mitford's  PI.  ch.  2,  §  2,  part  1 ; 
See  Oregon  &  Transcontinental  Co.  v.  Story's  Eq.  PI.  §  614 ;  Stafford  v.  How- 
Northern  Pac.  R.  Co.,  32  Fed.  R.  482.  lett,  1  Paige  (N.  Y.),  200. 

4  Bowyer  v.  Bright,  13  Price,  316;  10  Tonkin  v.  Lethhridge,  G.  Cooper,  43 ; 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1682.  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1681. 

5  Bowyer  v.  Bright,  13  Price,  316;  u  Baldwin  v.  Mackown,  3  Atk.  817; 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1682.  Mitford's  PI.  ch.  2,  §  2,  part  1;  Daniell's 

e  Shaw  v.  Bill,  95  U.  S.  10,  14.  Ch.  Pr.  (2d  Am.  ed.)  1681. 

t  Daniell's  Ch    Pr.  (2d  Am.  ed.)  1680. 


§  189.]  PROCEEDINGS   UPON   SUPPLEMENTAL  BILLS.  275 

gains  and  profits  made  by  the  infringement,  both  before  and  sub- 
sequent to  the  extension ;  but  the  rule  is  otherwise  where  the 
original  patent  is  surrendered,  as  the  effect  of  the  surrender  is  to 
extinguish  the  patent,  and  hence  it  can  no  more  be  the  founda- 
tion for  the  assertion  of  a  right  than  can  a  legislative  act  which 
has  been  repealed  without  any  saving  clause  of  pending  actions. 
Consequently,  the  infringement  of  the  reissued  patent  becomes 
a  new  cause  of  action  for  which,  in  the  absence  of  anj'  agree- 
ment or  implied  acquiescence  of  the  respondent,  no  remedy  can 
be  had  except  by  the  commencement  of  a  new  suit."12  Where, 
however,  the  defendant  made  no  objection  to  the  complainant's 
filing  a  supplemental  bill  setting  forth  an  infringement  of  the 
reissued  patent,  but  filed  to  it  a  plea  similar  to  that  which  he 
had  previously  filed  to  the  original  bill,  it  was  held,  that  he  had 
waived  his  right  to  object  upon  appeal  that  the  suit  was  improp- 
erly continued,  and  that  an  original  bill  should  have  been  filed.13 
After  the  complainant  had  finished  taking  testimony  in  a  suit 
for  the  infringement  of  a  patent,  and  an  account,  he  was  allowed 
to  file  a  supplemental  bill  setting  up  infringements  which  had 
occurred  after  the  filing  of  the  original  bill.14 

Any  objections  to  a  supplemental  bill  which  do  not  appear 
upon  its  face  may  be  taken  by  plea  or  answer,  which,  in  general, 
are  subject  to  the  same  rules  as  pleas  and  answers  to  original 
bills.15  If  a  defendant  has  not  answered  the  original  bill,  his 
successor  may  be  called  upon  in  the  supplemental  bill  to  do  so.16 
When  that  is  done,  the  usual  course  is  to  include  the  answer 
to  the  original  and  that  to  the  supplemental  bill  in  the  same 
pleading;17  although  it  is  not  absolutely  irregular  to  separate 
them.18  A  defense  cannot  be  pleaded  to  a  supplemental  bill  which 
has  previously  been  pleaded  to  the  original  bill,  and  overruled.19 
If  the  plaintiff  wish  to  join  issue  upon  averments  in  the  answer, 
he  may  file  a  replication  to  it.20  If  there  has  been  no  replication 
filed  in  the  original  suit,  however,  a  single  general  replication 
will  apply  to  the  whole  record,  and  put  at  issue  the  allegations 

12  Mr.  Justice  Clifford  in  Reedy  v.  15  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1G82. 
Scott,  23  Wall.  352,364,365.  See  also  16  Vigera  v.  Lord  Audley,  9  Simons,  408. 
Fry  v.  Quinlan,  13  Blatchf.  205;  Jones  v.  17  Vigera  v.  Lord  Audley,  9  Simons,  408. 
Barker,  11  Fed.  R.  507.  But  compare  1S  Sayle  v.  Graham,  5  Simons,  8. 
Woodworth  v.  Stone,  3  Story,  749 ;  Reay  19  Pentlarge  v.  Pentlarge,  22  Fed.  R. 
v.  Raynor,  10  Fed.  R.  308.  412. 

13  Reedy  v.  Scott,  23  Wall.  352.  20  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1G83; 
M  Turrell  v.  Spaeth,  9  Off.  Gaz.  1163.       Perkins  v.  Hendry  x,  31  Fed.  R.  522. 


276  BILLS   OF   REVIVOR,   ETC.  [CHAP.  XIV. 

in  both  answers.21  If  the  new  matter  in  the  supplemental  bill  is 
not  admitted,  it  must  be  proved  ;  or  the  bill  will  be  dismissed 
with  costs.22  For  this  purpose  evidence  may  be  taken  and  a  hear- 
ing had  as  upon  an  original  bill.23  If  there  has  been  no  previous 
hearing  and  decree,  both  bills  may  be  brought  to  a  hearing 
together,  and  a  single  decree  will  suffice  for  both.24  If  the  sup- 
plemental bill  is  heard  alone,  the  evidence  taken  in  the  original 
suit  may  be  read  in  support  of,  or  in  opposition  to  it.25  The 
effect  of  a  supplemental  bill  when  sustained  is  to  put  the  suit 
in  the  same  condition  as  if  the  supplemental  matter  had  been 
alleged,  and  the  new  party,  if  any,  brought  in  at  its  institution.26 
§  190.  Bills  in  the  Nature  of  Supplemental  Bills  in  general.  —  A 
bill  in  the  nature  of  a  supplemental  bill  is  a  bill  filed  to  obtain 
the  benefit  of  a  suit,  either  after  an  abatement  which  cannot  be 
cured  by  a  bill  of  revivor  or  a  bill  in  the  nature  of  a  bill  of  re- 
vivor, or  after  the  suit  has  become  defective  in  cases  which  do 
not  admit  of  a  supplemental  bill  to  supply  that  defect.1  Cases 
frequently  occur  in  practice  where  the  interest  of  an  original 
party  to  a  suit  is  completely  determined,  and  another  person 
becomes  interested  in  the  subject-matter  by  a  title  not  derived 
from  the  other,  but  in  such  a  manner  as  to  make  it  proper  that 
the  benefit  of  the  former  proceedings  should  be  had  by  or  against 
the  latter,  without  incurring  the  expense  of  commencing  an  en- 
tirely new  proceeding.  In  such  a  case,  the  benefit  of  the  former 
proceedings  may  be  obtained  by  means  of  a  bill  called  an  original 
bill  in  the  nature  of  a  supplemental  bill,  or  a  bill  in  the  nature  of 
a  supplemental  bill.2  Such  a  bill  must  also  be  filed  to  bring  into 
a  suit  the  assignee  of  a  sole  plaintiff  who  had  acquired  his  inter- 
est during  its  pendency.3  The  reason  given  for  this  is  the  doc- 
trine of  maintenance,  in  consequence  of  which  "it  is  not  enough 
for  the  new  plaintiff  to  state  that  his  assignor  instituted  a  suit 
and  assigned  to  him  the  benefit  of  it ;   he  must  show  that  his 

21  Cattonc.  Earl  of  Carlisle,  5  Madd.  427.  §190.   1  Mitford's    PI.    ch.    1,    §    3; 

22  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1683;  Campbell  v.  New   York,  35  Fed.  R.  14; 
Pedrick  v.  White,  1  Met.  (Mass.)  76.  Tappan  v.  Smith,  5  Biss.  73. 

23  Lloyd  v.  Johnes,  9  Ves.  37  ;  Daniell's         2  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1685 ; 
Ch.  Pr.  (2d  Am.  ed.)  1683.  Mitford's  PI.  ch.  1,  §  3. 

'-'*  Mitford's  PI.  ch.  1,  §  3;     Daniell's  3  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1667; 

Ch.  Pr.  (2d  Am.  ed.)  1684,  1685.  Campbell  v  New  York,  35  Fed.  R.  14; 

2»  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1684;  Tappan  v.   Smith,   5  Biss.   73.     But  see 

Turrell  v.  Spaeth,  9  Off.  Gaz.  1163.  Hoxie  v.  Carr,  1  Sumner,  173 ;  Sedgwick 

a  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1666,  v.  Cleveland,  7  Paige  (N.  Y.),  290. 
1667. 


§  192.]         BILLS   IN   THE   NATUEE   OF   SUPPLEMENTAL   BILLS.  277 

assignor  had  the  property  in  respect  of  which  the  suit  was  insti- 
tuted, and  that  that  property  has  been  assigned  and  carries  with 
it  the  right  to  sue."  4  So,  where  a  defendant  dies  before  appear- 
ance or  a  decree  against  him  pro  confesso,  his  successor  can  only 
be  brought  in  by  a  bill  in  the  nature  of  a  supplemental  bill, 
which,  however,  is  considered  merely  supplemental  as  to  the 
other  defendants.5 

§  191.  Frame  of  a  Bill  in  the  Nature  of  a  Supplemental  Bill.  — 
A  bill  in  the  nature  of  a  supplemental  bill  "  must  state  the 
original  bill,  the  proceedings  upon  it,  the  event  which  has  deter- 
mined the  interest  of  the  party  by  or  against  whom  the  former 
bill  was  exhibited,  and  the  manner  in  which  the  property  has 
vested  in  the  person  become  entitled.  It  must  then  show  the 
ground  upon  which  the  court  ought  to  grant  the  benefit  of  the 
former  suit  to  or  against  the  person  so  become  entitled,  and  pray 
the  decree  of  the  court  adapted  to  the  case  of  the  plaintiff  in  the 
new  bill."  *  It  will  not  be  impertinent  for  it  to  restate  allega- 
tions of  the  bill  or  answer  in  the  original  suit,  nor  to  charge 
new  matter  which  occurred  before  the  original  bill  was  filed,  for 
the  purpose  of  meeting  a  defense  in  the  original  answer.2  But  a 
bill  in  the  nature  of  a  supplemental  bill  need  contain  no  more  of 
the  allegations  in  the  original  bill  than  suffices  to  show  a  cause 
of  action  against  the  defendants  to  it.3  Otherwise,  its  form 
should  be,  as  far  as  possible,  in  compliance  with  that  of  an 
original  bill.  If,  however,  its  object  be  merely  to  obtain  the 
benefit  of  the  proceedings  in  the  original  suit,  the  want  of  the 
difference  of  citizenship  necessary  to  support  an  independent 
original  bill  will  not  deprive  the  court  of  jurisdiction  of  it,  pro- 
vided the  first  suit  were  properly  brought.4 

§  192.  Proceedings  upon  Bills  in  the  Nature  of  Supplemental 
Bills.  —  A  bill  in  the  nature  of  a  supplemental  bill  is  filed  in  the 
same  manner  as  a  supplemental  bill,  and  the  same  rule  governs 
the  time  of  the  filing  of  pleadings  to  it.1    Otherwise,  proceedings 

4  White  on  Supplement  and  Reviyor,  Attorney-General  v.  Foster,  2  Hare, 
126,  174;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  81  ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1667, 
16G7.  1608. 

6  United  States  v.  Fields,  4  Blatchf.  8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1675- 

326 ;  Crowfoot  v.  Mander,  9  Simons,  896 ;     1G77  ;  Vigers  v.  Lord  Audley,  9  Simons, 

72. 


Asbee  v.  Shipley,    Mad.  &  Geld.    296; 
aniell's  Ch.  Pr.  (2d  Am.  ed  )  1673. 
§  191.  i  Mitford's  PI.  eh.  1,  §  3. 
2  Woods  v.  Woods,  10  Simons,  197 ;  §  192.   »  Rule  57.     See  §  ISO. 


Daniell's  Ch.  Pr.  (2d  Am.  ed  )  1673.  4  Minnesota   Co.   v.  St.   Paul   Co.,  2 

§  191.  i  Mitford's  PI.  ch.  1,  §  3.  Wall.  609. 


278  BILLS   OF   REVIVOR,   ETC.  [CHAP.  XIV. 

upon  bills  in  the  nature  of  supplemental  bills  resemble  those 
upon  independent  original  bills.  According  to  Lord  Redesdale, 
"a  new  defense  may  be  made;  the  pleadings  and  depositions 
cannot  be  used  in  the  same  manner  as  if  filed  or  taken  in  the 
same  cause  ;  and  the  decree,  if  any  has  been  obtained,  is  no 
otherwise  of  advantage  than  as  it  may  be  an  inducement  to  the 
court  to  make  a  similar  decree."2  As  has  been  remarked  by 
Lord  Eldon,  this  passage  contains  an  obscurity  of  language  which 
is  due  to  an  obscurity  in  the  subject.3  But  the  probable  meaning 
and  the  view  of  the  matter  best  supported  by  authority  is,  that 
upon  the  filing  of  what  is  called  a  bill  in  the  nature  of  a  supple- 
mental bill,  no  further  benefit  of  the  proceedings  in  the  original 
suit  can  be  obtained  than  would  be  if  it  were  styled  merely  an 
original  bill ;  and  the  admission  of  the  evidence  and  admissions 
and  the  benefit  of  the  decree  in  the  former  suit  will  only  be 
allowed  when  the  parties  to  the  second  are  in  privity  with  those 
to  the  first  suit.4 

2  Mitford's  PI.  ch.  1,  §  3.  *  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1685- 

3  Lloyd  v.  Johnes,  9  Ves.  37,  50.  1688. 


§  195.]  MOTIONS   OF   COURSE.  279 


CHAPTER  XV. 

INTERLOCUTORY  APPLICATIONS   AND   PETITIONS. 

§  193.  Definition  and  Classification  of  Interlocutory  Applications. 
—  An  interlocutory  application  is  a  request,  not  incorporated  in 
a  bill,  made  to  the  court  for  its  interference  in  a  matter  arising  in 
a  cause  either  before  or  after  a  decree.  An  interlocutory  appli- 
cation is  made  by  motion  on  petition. 

§  194.  Definition  and  Classification  of  Motions.  —  A  motion  has 
been  defined  as  "  an  application  either  by  a  party  or  his  coun- 
sel, not  founded  upon  any  written  statement  addressed  to  the 
court."  1  But  the  rules  of  the  Supreme  Court  of  the  United 
States  provide  that  "  all  motions  hereafter  made  to  the  court 
shall  be  reduced  to  writing,  and  shall  contain  a  brief  statement 
of  the  facts  and  objects  of  the  motion."  2  And  most  motions 
are  supported  by  affidavits.  Motions  are  either  of  course  or 
special.     Special  motions  are  either  ex  parte  or  upon  notice. 

§  195.  Motions  of  Course.  —  Motions  of  course  are  those  which, 
by  some  rule  or  practice  of  the  court,  are  invariably  granted  with- 
out notice,  and  to  which  no  opposition  is  allowed.1  In  Federal 
equity  practice,  the  term  is  usually  confined  to  such  motions  as 
are  granted  as  of  course  by  the  clerk  without  the  intervention 
of  a  judge  of  the  court.2  The  equity  rules  provide  that  "  all 
motions  and  applications  in  the  clerk's  office  for  the  issuing  of 
mesne  process  and  final  process  to  enforce  and  execute  decrees ; 
for  filing  bills,  answers,  pleas,  demurrers,  and  other  pleadings  ; 
for  making  amendments  to  bills  and  answers ;  for  taking  bills  pro 
confesso  ;  for  filing  exceptions  ;  and  for  other  proceedings  in  the 
clerk's  office  which  do  not  by  the  rules  hereinafter  prescribed 
require  any  allowance  or  order  of  the  court,  or  of  any  judge 
thereof,  shall  be  deemed  motions  and  applications  grantable  of 

§  194.   i  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  §  195.   >  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 

1787.     See  the  language  of  Folger,  J.,  in  1599;  United  States  v.  Parrott,  1  McAll. 

Shaft  r.  Phoenix  Mutual  Life  Ins.  Co.,  67  447,  454. 
N.  Y.  544,  547.  2  Robinson  v.  Satterlee,  3  Saw.  134, 

2  Supreme  Court  Rule  G.  141. 


280  INTERLOCUTORY   APPLICATIONS    AND    PETITIONS.      [CHAP.  XV. 

course  by  the  clerk  of  the  court.  But  the  same  may  be  sus- 
pended, or  altered,  or  rescinded  by  any  judge  of  the  court,  upon 
special  cause  shown."  3  The  order  dismissing  a  bill  for  an  omis- 
sion to  duly  file  a  replication  is  an  order  as  of  course.4  It  has 
been  held  that  an  order  for  the  issue  of  a  commission  is  not.5 
"  The  clerk's  office  shall  be  open,  and  the  clerk  shall  be  in  at- 
tendance therein,  on  the  first  Monday  of  every  month,  for  the 
purpose  of  receiving,  entering,  entertaining,  and  disposing  of  all 
motions,  rules,  orders,  and  other  proceedings,  which  are  grantable 
of  course  and  applied  for,  or  had  by  the  parties  or  their  solici- 
tors, in  all  causes  pending  in  equity,  in  pursuance  of  the  rules 
hereby  prescribed."  6  "  All  motions,  rules,  orders,  and  other  pro- 
ceedings made  and  directed  at  chambers,  or  on  rule-days  at  the 
clerk's  office,  whether  special  or  of  course,  shall  be  entered  by  the 
clerk  in  an  order  book,  to  be  kept  at  the  clerk's  office,  on  the 
day  when  they  are  made  and  directed,  which  book  shall  be  open 
at  all  office  hours  to  the  free  inspection  of  the  parties  in  any  suit 
in  equity,  and  their  solicitors.  And,  except  in  cases  where  per- 
sonal or  other  notice  is  specially  required  or  directed,  such  entry 
in  the  order-book  shall  be  deemed  sufficient  notice  to  the  parties 
and  their  solicitors,  without  further  service  thereof,  of  all  orders, 
rules,  acts,  notices,  and  other  proceedings  entered  in  such  order- 
book,  touching  any  and  all  the  matters  in  the  suits  to  and  in 
which  they  are  parties  and  solicitors." " 

§  196.  Special  Motions  without  Notice.  —  A  special  motion  is  a 
motion  which  can  only  be  granted  by  a  judge  of  the  court  under 
special  circumstances  or  in  his  discretion.1  Such  motions  are 
either  upon  notice  or  without  notice.  Orders  granted  upon 
motions  without  notice  are  said  to  be  ex  parte  ;  and  the  same 
term  is  applied  to  the  motions  upon  which  they  are  granted. 
An  ex  parte  special  motion  must  be  supported  by  an  affidavit.2 
Ex  parte  special  motions  are  not  common.3  They  are  usually 
granted  to  prevent  some  irreparable  injury  to  the  moving  party 
which  would  otherwise  occur  within  the  time  limited  for  notice, 

s  Rule  5.  1789;  United  States  v.  Parrott,  1  McAll. 

*  Robinson  v.  Satterlee,  3  Saw.  134,  447,  454. 
141.  2  Daniell's  Ch.  Pr.  (2dAm.ed.)  1789. 

5  United  States  v.  Parrott,  1  McAll.  8  McLean  v.  The  Lafayette  Bank,  3 
447.  McLean,  503;   United  States  v.  Parrott, 

6  Rule  2.  1  McAll.  447 ;  Marshall  v.  Mellersh,  5 
»  Rule  4.  Beav.  496 ;  Gray  v.  Chicago,  la.  &  Neb. 
§  196.  i  Daniell's  Ch.  Pr.  (2d  Am.  ed.)     R.  R.  Co.,  1  Woolw.  63. 


§  196.]  SPECIAL   MOTIONS   WITHOUT   NOTICE.  281 

when  the  same  is  required  ;  and  the  court  should  always  lond  a 
willing  ear  to  an  application  to  discharge  or  set  aside  an  ex  parte 
order.4    Writs  of  ne  exeat  republica  are  usually  granted  ex  parte.6 
So  are  applications  for  extensions  of  time  to  plead,  or  take  other 
proceedings  in  a  cause.     The  equity  rules  provide  that  "  when- 
ever an  injunction  is  asked  for  by  the  bill  to  stay  proceedings  at 
law,  if  the  defendant  do  not  enter  his  appearance,  and  plead, 
demur,  or  answer  to  the  same  within  the  time  prescribed  there- 
for bv  these  rules,  the  plaintiff  shall  be  entitled  as  of  course, 
upon  motion,  without  notice,  to  such  injunction.     But  special 
injunctions  shall  be  grantable  only  upon  due  notice  to  the  other 
party  by  the   court  in  term,  or  by  a  judge  thereof  in  vacation, 
after  a  hearing,  which  may  be  ex  parte,  if  the  adverse  party  does 
not  appear   at   the    time   and   place   ordered.      In    every    case 
where  an  injunction  —  either  the  common  injunction  or  the  special 
injunction  —  is  awarded  in  vacation,  it  shall,  unless  previously 
dissolved  by  the  judge  granting  the    same,   continue   until  the 
next  term  of  the  court,  or  until  it  is  dissolved  by  some  other 
order  of  the  court."  6     The  Revised  Statutes,  however,  make  an 
exception  to  this  rule,  in  providing  that  "  whenever  notice  is 
given  of  a  motion  for  an  injunction  out  of  a  Circuit  or  District 
Court,  the  court  or  a  judge  thereof  may,  if  there  appears  to  be 
danger  of  irreparable  injury  from  delay,  grant  an  order  restrain- 
ing the  act  sought  to  be  enjoined  until   the  decision   upon  the 
motion  ;  and  such  order  may  be  granted  with  or  without  secu- 
rity, in  the  discretion  of  the  court  or  judge."  7     The  rule  was, 
moreover,  thus  construed  by  Mr.  Justice  Miller :    "  The  justices 
of  the  Supreme  Court  have  power  to  grant  injunctions  which  do 
not  expire  by  the  commencement  of  the  next  succeeding  terra. 
To  injunctions  thus  granted,  the  latter  part  of  the  rule  applies, 
namely,  —  that   they    continue    until   dissolved   by   some   other 
order  of  the  court.     To  injunctions  granted  by  the  judges  01 
the  district  courts,  the  other  alternative  of  the  disjunctive  sen- 
tence applies,  merely  reiterating  the  provision  of  the  statute,  that 
they  continue  till  the  next  term   of  the  court,  unless   otherwise 
ordered  by  the  court."  8     Ex  parte  orders  may  be  obtained  at 

4  Dantell's  Ch.  Pr.  (2d  Am.  ed.)  1789,  6  Rule  55.    See  also  Yuengling  v.  John- 

1790  ;  Isnard  v.  Cazeaux,  1  Paige  (N.  Y.),  son,  1  Hughes,  607. 
39 ;  Hart  v.  Small,  4  Paige  (N.  Y.),  551.  7  U.  S.  R.  S.  §  718. 

6  Collinson  v. ,  18  Ves.  353 ;  Dan-  8  Gray  v.  Chicago,  la.  &  Neb.  R.  R.  Co., 

fell's  Ch.  Pr.  (2d  Am.  ed.)  1789,  1937.  1  Woolw.  63,  68. 


282  INTERLOCUTORY   APPLICATIONS   AND   PETITIONS.      [CHAP.  XV. 

any  time  and  in  any  place  within  the  jurisdiction  of  the  judge, 
whether  in  court  or  elsewhere.9 

§  197.  Notice  of  Motion.  —  The  equity  rules  provide  that  "  all 
motions  for  rules  or  orders  and  other  proceedings,  which  are  not 
grantable  of  course  or  without  notice,  shall,  unless  a  different 
time  be  assigned  by  a  judge  of  the  court,  be  made  on  a  rule-day, 
and  entered  in  the  order-book,  and  shall  be  heard  at  the  rule-day 
next  after  that  on  which  the  motion  is  made.  And  if  the  adverse 
party,  or  his  solicitor,  shall  not  then  appear,  or  shall  not  show 
good  cause  against  the  same,  the  motion  may  be  heard  by  any 
judge  of  the  court  ex  parte,  and  granted,  as  if  not  objected  to,  or 
refused,  in  his  discretion." 1  "  Any  judge  of  the  Circuit  Court,  as 
well  in  vacation  as  in  term,  may,  at  chambers,  or  on  the  rule-days 
at  the  clerk's  office,  make  and  direct  all  such  interlocutory  orders, 
rules,  and  other  proceedings,  preparatory  to  the  hearing  of  all 
causes  upon  their  merits,  in  the  same  manner  and  with  the  same 
effect  as  the  Circuit  Court  could  make  and  direct  the  same  in 
term,  reasonable  notice  of  the  application  therefor  being  first 
given  to  the  adverse  party,  or  his  solicitor,  to  appear  and  show 
cause  to  the  contrary,  at  the  next  rule-day  thereafter,  unless  some 
other  time  is  assigned  by  the  judge  for  the  hearing."2  It  has 
been  held  that  the  foregoing  rule  does  not  apply  to  a  motion 
made  in  term  and  in  the  presence  of  counsel  for  the  opposing 
side.3  "  Except  in  cases  where  personal  or  other  notice  is  specially 
required  or  directed,  such  entry  in  the  order-book  shall  be  deemed 
sufficient  notice  to  the  parties  and  their  solicitors,  without  further 
service  thereof,  of  all  orders,  rules,  acts,  notices,  and  other  pro- 
ceedings, entered  in  such  order-book,  touching  any  and  all  mat- 
ters in  the  suits  to  and  in  which  they  are  parties  and  solicitors. 
And  notice  to  the  solicitors  shall  be  deemed  notice  to  the  parties 
for  whom  they  appear  and  whom  they  represent,  in  all  cases 
where  personal  notice  on  the  parties  is  not  otherwise  specially 
required.  Where  the  solicitors  for  all  the  parties  in  a  suit 
reside  in  or  near  the  same  town  or  city,  the  judges  of  the  Cir- 
cuit Court  may,  by  rule,  abridge  the  time  for  notice  of  rules, 
orders,  or  other  proceedings  not  requiring  personal  service  on  the 
parties,  in  their  discretion." 4     This  subject  is  usually  regulated 

9  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1789;  3  McLean  v.  The  Lafayette  Bank,  3 

Rule  3.  McLean,  503,  505. 
§  197.   !  Rule  6.  4  Rule  4. 

2  Rule  3. 


§  197.]  NOTICE   OF   MOTION.  283 

by  rule  or  local  practice  different]}'  in  the  several  circuits.  In 
the  Circuit  Court  for  the  Southern  District  of  New  York,  four 
days'  notice  personally  served,  together  with  a  copy  of  the  bill 
and  of  the  affidavits  intended  to  be  used  in  support  of  the  motion, 
is  all  that  is  usually  required.5 

All  notices  of  motion  for  any  process  of  contempt  or  commit- 
ment must  be  served  personally  on  the  party  against  whom  the 
process  is  sought,6  except,  perhaps,  when  an  order  for  substituted 
service  has  been  previously  obtained.7  In  England,  under  special 
circumstances,  notice  of  a  motion  could  be  made  upon  an  agent 
of  a  person  without  the  jurisdiction.8 

A  notice  of  motion  should  be  properly  entitled  in  the  cause  or 
matter  in  which  it  is  made.9  It  should  be  addressed  to  the  soli- 
citor of  the  party  intended  to  be  affected  by  it,  or  to  the  party 
himself  when  he  appears  in  person  or  personal  service  is  intended. 
It  should  be  dated,10  and  signed  by  the  solicitor  for  the  moving 
party,  or  by  that  party  himself  if  he  appear  in  person.11  It  has 
been  held  in  New  York  that  a  notice  signed  in  person  by  a  defend- 
ant who  has  previously  appeared  by  a  solicitor  who  has  not  been 
removed  is  irregular.12  A  notice  of  motion  should  state  the  day, 
place,  and  hour  at  which  the  motion  will  be  made.13  It  is  usual, 
however,  to  designate  the  hour  by  the  expression  "  at  the  open- 
ing of  the  court  on  that  day,"  and  to  add  the  words  "  or  as  soon 
thereafter  as  counsel  can  be  heard."  14  Where  the  motion  can 
be  made  only  by  leave  of  the  court,  the  notice  ought  to  mention 
that  it  is  so  made ;  or,  otherwise,  it  seems  that  it  may  be  disre- 
garded.15    Where   the  object  of  the  motion  is  to  discharge  an 

6  See  Rule  105  of  the  Rules  of  the  10  Barbour's  Ch.   Pr.  570 ;    Moody  v. 

U.S.  C.  C.  for  the  Southern  District  of  Hebberd,    11    Jur.    941;    Hutchinson   v. 

New  York.  Horner,  9  Jur.  615  ;  Parker  v.  Francis,  9 

6  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1794 ;  Jur.  616,  note. 

Gray  v.  Chicago,  la.  &  Neb.  R.  R.  Co.,  1  u  Barbour's    Ch.    Pr.    570  ;    Perry  v. 

Woolw.  63.  Walker,  4  Beav.  452. 

7  Hope  v.  Hope,  4  De  G.,  M.  &  G.  328.  12  Halsey  v.  Carter,  6  Robertson  (N.  Y.), 

8  Daniell's  Ch.  Pr  (2d  Am.  ed  )  1794;  535;  Webb  v.  Dill,  18  Abb.  Pr.  (N.   Y.) 
Hope  v.  Hope,  4  De  G.,  M.  &  G.  328 ;  264. 

Cooper  v.  Wood,  5  Beav.  391;   Pulteney  w  Barbour's  Ch.  Pr.  570;   Bodwell  v. 

v.  Shelton,   5  Ves.  147;  Hunt  v.  Lever,  Willcox,  2  Caines  (N.  Y.),  104;  Anon., 

5  Ves.  147  ;  and  §  96.  1  J.  R.  (N.  Y.)  143. 

9  Barbour's  Ch.  Pr.  570  ;    Rowlatt  v.  u  Barbour's  Ch.  Pr.  570 ;  In  re  Electric 
Cattell,  2  Hare,  180  ;    Salomon  v.  Stal-  Tel.  Co.  of  Ireland,  10  W.  R.  4. 

man,  4  Beav.  243;   Davis  v.  Barrett,  7         15  Hill  v.  Rimell,  8  Simons,  632 ;  Jack- 
Beav.  171 ;  Morrall  v.  Prichard,  11  Jur.     lin  v.  Wilkins,  6  Beav.  607. 
(n.  s)  969. 


284  INTERLOCUTORY   APPLICATIONS   AND   PETITIONS.      [CHAP.  XV. 

order  for  irregularity,  it  is  usual  for  the  notice  to  state  the 
ground  of  the  application.16  It  is  usual  for  the  notice  also  to 
6tate  before  what  judge  the  motion  will  be  made  ;  and  to  specify 
the  affidavits  and  other  documents  which  will  be  used  in  its  sup- 
port.17 The  notice  must  state  clearly  the  terms  of  the  order 
which  will  be  asked  for,  and  everything  which  the  party  would 
have  should  be  expressed  ;  as  the  court  will  not  extend  the  order 
beyond  the  notice.18  For  this  reason,  it  is  usual  to  add  a  notice 
of  a  motion  for  general  relief;  that  is,  "for  such  other  or  further 
order  or  relief  as  to  the  court  shall  seem  just;"  under  which  other 
relief  germane  to  that,  a  motion  for  which  has  been  specifically 
noticed,  may  be  granted.19  It  has  been  held  that  a  motion  for 
the  appointment  of  a  receiver  cannot  be  made  at  the  hearing, 
upon  a  motion  for  an  injunction  against  an  interference  with  a 
railroad  claimed  to  be  in  the  possession  of  the  moving  party.20 
"A  motion  to  suppress  depositions  brings  up  the  regularity  of 
an  ex  parte  order  directing  them  to  be  taken,  as  well  as  the  com- 
petency of  the  witnesses  examined,  if  the  party  moving  to  sup- 
press has  never  done  anything  to  waive  the  objection."21 

A  motion  may  be  made  by  any  party  to  a  cause  except  one 
who  is  in  contempt.22  A  party  in  contempt  cannot  move  for  any 
other  purpose  than  to  discharge  the  contempt  proceedings,23  or  to 
expunge  scandal  from  the  record.24  And  it  has  been  said  that, 
in  such  cases,  he  should  apply  by  petition.25  No  one  should  join 
in  a  notice  for  a  motion  in  which  he  is  not  directly  interested.26 
The  joinder  of  one  disinterested  party  with  others  who  had  an 
interest  was  held  in  England  a  sufficient  reason  for  refusing  the 
whole  motion.27  A  motion  in  the  course  of  proceedings  under  an 
information  cannot  be  made  on  behalf  of  the  relators,  but  only  on 
behalf  of  the  attorney-general  or  district  attorney.28     Where  it 

»  Brown  v.  Robertson,  2  Phil.  173 ;  Al-  &  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1787  ; 

exander  v.  Esten,  1  Caines  (N.  Y.),  152;  Nicholson  v.  Squire,  16  Ves.  259,  260. 

Jackson  v.  Stiles,  1  Cowen  (N.  Y.),  134.  «  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  554- 

"  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1793;  558, 1787  ;  Anon.,  5  Ves.  656. 

Clement  v.   Griffith,   C.   P.   Coop.   470;  2*  Everett  v.  Prythergeh,  12  Simons, 

Brown  v.  Ricketts,  2  J.  Ch.  (N.  Y.)  425.  363. 

18  Barbour's  Ch.  Pr.  570  ;  Mann  v.  ,25  Lord  Eldon  in  Nicholson  v.  Squire,  16 
King,  18  Ves.  297.  Ves.  259,  260. 

19  Barbour's  Ch.  Pr.  570.  26  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1793 ; 

20  St.  L.  K.  C.  &  C.  Ry.  Co.  v.  Dewees,  Folland  v.  Lamotte,  10  Simons,  486. 

23  Fed.  R.  691.  27  Folland  v.  Lamotte,  10  Simons,  486. 

21  Mr.  Justice  Bradley  in  Eslava  v.  28  Attorney-General  v.  Wright,  3  Beav. 
Mazange,  1  Woods,  623,  627.  447. 


§  193.]  ARGUMENT   OF   MOTIONS.  285 

is  clearly  for  the  interest  of  a  person  under  a  disability  to  make 
a  motion,  and  he  has  no  next  friend,  or  his  next  friend  refuses 
to  do  so,  a  next  friend  for  the  purposes  of  the  application  may 
move  on  his  behalf.29 

A  number  of  objects  not  inconsistent  with  each  other,  and 
even  inconsistent  objects,  if  prayed  for  in  the  alternative,  may 
be  included  in  the  same  notice  and  motion.30  The  court  will 
discourage  when  directing  as  to  costs  the  making  of  separate 
motions  for  objects  which  might  have  been  conveniently  obtained 
by  a  single  application.31 

§  198.  Argument  of  Motions. — The  manner  of  bringing  motions 
to  a  hearing  is  regulated  by  local  rule  or  usage  differently  in 
the  different  circuits.  Lord  Campbell  has  thus  described  the 
former  English  practice,  which  was  abolished  by  Lord  Mansfield, 
whose  rules  for  the  hearing  of  motions  at  common  law  were  fol- 
lowed by  the  Court  of  Chancery  :  "  Day  by  day  during  the  term, 
each  counsel  when  called  upon  had  been  accustomed  to  make  as 
many  motions  successively  and  continuously  as  he  pleased.  The 
consequence  was,  that  by  the  time  the  Attorney  and  Solicitor-Gen- 
eral, and  two  or  three  other  Dons,  had  exhausted  their  motions, 
the  hour  had  arrived  for  the  adjournment ;  and  as  the  counsel  of 
highest  rank  was  again  called  to  at  the  sitting  of  the  court  next 
morning,  juniors  had  no  opportunity  of  making  any  motions 
with  which  they  might  be  intrusted  till  the  last  day  of  term, 
when  it  was  usual,  as  a  fruitless  compliment  to  them,  to  begin 
with  the  back  row  —  after  the  time  had  passed  by  when  their 
motions  could  be  made  with  any  benefit  to  their  clients.  The 
consequence  was,  that  young  men  of  promise  were  unduly  de- 
pressed, and  more  briefs  were  brought  to  the  leaders  than  there 
was  time  for  them  to  read,  even  had  they  been  toiling  all  night 
at  their  chambers  instead  of  sitting  up  in  the  House  of  Com- 
mons absorbed  in  party  struggles.  Thus  the  interests  of  the 
suitors  were  in  danger  of  being  neglected,  and  the  judges  did  not 
receive  the  fair  assistance  from  the  bar  in  coining  to  a  right  con- 
clusion which  the}'-  were  entitled  to  expect.  To  remedy  these 
evils,  a  rule  was  made  that  the  counsel  should  only  make  one 
motion  a-piece  in  rotation ;  and  that  if  by  chance  the  court  rose 

29  Cox  v.  Wright,  9  Jur.  (n.  s.)   981  ;        80  Darnell's  Ch.  Pr.  (2d  Am.  ed.)  1792, 
Guy  v.  Guy,  2  Beav.  460;   Furtado  t;.     1793. 
Furtado,  6  Jur.  227.  »'  Hawke  v.  Kemp,  3  Beav.  288. 


286  INTERLOCUTORY   APPLICATIONS   AND   PETITIONS.      [CHAP.  XV. 

before  the  whole  bar  had  been  gone  through,  the  motion  should 
begin  next  morning  with  him  whose  turn  it  was  to  move  at  the 
adjournment.  The  business  was  thus  both  more  equally  distrib- 
uted and  much  better  done."1  This  custom,  however,  if  it  ever 
did  prevail,  was  early  abolished  in  this  country  ;  and  here  usu- 
ally either  no  method  is  observed,  and  motions  are  made  by 
counsel  as  they  catch  the  judge's  eye,  or  a  calendar  upon  which 
motions  are  placed  by  the  clerk  in  the  order  in  which  they  were 
first  brought  to  his  attention,  is  made  and  called. 

"When,  at  the  hearing  of  a  motion,  the  opposite  party  is  not 
represented,  proof  of  service  must  be  shown  by  entry  in  the 
order-book,  affidavit,  or  admission  ;  and  the  hearing  may  then 
proceed  ex  parte?  When  the  moving  party  does  not  then  ap- 
pear, his  motion  will  be  dismissed.  When  both  sides  are  repre- 
sented, the  moving  party  has  the  right  of  opening  and  replying.3 
The  English  rule  was  that,  "in  injunction  cases,  where  upon  an 
order  to  dissolve  an  injunction  nisi  the  plaintiff  shows  cause 
upon  the  merits  confessed  in  the  answer ;  then  no  reply  is  al- 
lowed, the  motion  for  the  order  nisi  being  considered  as  the 
application,  to  which  the  plaintiff  answers  by  showing  cause 
upon  the  merits  ;  after  this,  the  defendant's  counsel  is  allowed  to 
argue  against  the  cause  shown  by  the  plaintiff,  and  this  is  con- 
sidered as  the  reply."4  As  a  general  rule,  no  person  can  be 
heard  in  support  of  a  motion  unless  he  has  been  one  of  the  par- 
ties who  gave  notice  of  it.5  But  when  the  object  of  a  motion  is 
to  reverse  the  conclusion  of  a  master,  it  seems  that  all  persons 
interested  in  the  master's  report  are  entitled  to  be  heard  in  its  sup- 
port.6 At  the  hearing,  if  the  English  practice  should  be  followed, 
any  affidavit  might  be  read  by  either  party  that  had  been  filed  in 
the  clerk's  office  before  the  hearing.  If  an  affidavit  were  filed 
too  late  for  the  other  side  to  take  a  copy  of  it,  or  to  obtain  an 
affidavit  controverting  facts  stated  in  it,  that  was  a  ground  for 
moving  to  postpone  the  hearing.  No  affidavit  filed  previous  to 
the  entry  of  the  motion  could  be  used  by  the  moving  party,  un- 
less he  had  in  his  notice  of  motion  stated  specifically  that  he 
intended  to  use  it.     A  separate  notice  to  that  effect,  if  served  a 

§  198.   *  Campbell's  Lives  of  the  Chief  4  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1799. 

Justices,  ch.  xxxiv.   pp.  398,  399.     See  5  Stubbs  v.  Sargon,  3  Beav.  408;  Dan- 

also  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1797.  iell's  Ch.  Pr.  (2d  Am.  ed.)  1793. 

2  Rule  6.  6  Johnston  v.  Todd,  5  Beav.  394 ;  Dan- 

3  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1799.  iell's  Ch.  Pr.  (2d  Am.  ed.)  1793. 


§  199.]  PETITIONS   IN   GENERAL.  237 

reasonable  time  before  the  hearing  of  the  motion,  would,  how- 
ever, probably  be  sufficient.7  This  subject  is,  however,  by  local 
rule  or  custom  regulated  differently  in  the  different  circuits. 
Where  an  order  is  made  by  which  a  particular  act  is  to  be  done, 
unless  the  other  party  shall  within,  or  rather,  as  is  the  usual 
American  custom,  at  a  certain  time,  show  cause  to  the  contrary  ; 
which  order  is  called  in  England  an  order  nisi,  in  the  United 
States  usually  an  order  to  show  cause ;  the  party  obtaining  it 
must,  on  the  return  day,  move  for  another  order  "  to  confirm 
the  previous  order  nisi  absolute."  The  motion,  in  this  case, 
requires  no  notice,  but  the  application  must  be  supported  by  an 
affidavit  to  prove  due  service  of  the  order  nisi,  similar  to  the 
proof  of  service  of  a  notice  of  motion,  unless  a  different  mode  or 
time  of  service  be  directed  by  the  judge  granting  it.8 

§  199.  Petitions  in  General.  —  A  petition  is  a  request  in  writing 
directed  to  the  judge  or  judges  of  the  court,  and  showing  some 
matter  or  cause  whereupon  the  petition  prays  some  direction  or 
order.1  It  may  be  made  by  one  who  is,  or  by  one  who  is  not,  a 
party  to  a  cause  pending  in  the  court.  Lord  Erskine  said 
formerly :  "  I  do  not  find  that  there  are  any  precise  or  posi- 
tive boundaries  between  motions  and  petitions,  as  they  are 
to  be  applied  to  carry  into  effect  decrees  and  orders,  so  as  to 
exclude  all  discretion  in  the  court  to  grant  or  refuse  them, 
according  to  circumstances  ;  but  generally  speaking,  motions 
which  have  for  theii  object  the  giving  effect  to  decrees  or  or- 
ders, should  be  confined  to  cases  where  the  order  which  is  to  be 
made  upon  the  motion  arises  out  of  recent  proceedings  upon 
which  there  is  no  doubt ;  for  as  the  adverse  party  knows  nothing 
but  by  the  notice,  containing  only  the  name  of  the  cause  and 
what  is  prayed  of  the  court,  the  proceedings  ought  to  be  recent 
and  notorious,  so  as  that  the  adverse  party  may  be  supposed  to 
be  perfectly  conusant  of  all  the  steps  and  proceedings  in  the  cause, 
as  much  as  if,  at  a  greater  expense,  they  were  recited  in  the 
petition."  2  But  petitions  are  now  rarely  filed  by  a  party  to  a 
cause,  since  any  relief  which  he  desires  can  usually  be  obtained 
equally  well  by  a  motion  supported  by  an  affidavit  containing 
the  allegations  which  would  be  necessary  in  a  petition.     Peti- 

7  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1797,  2  Lord   Shipbrooke  v.  Lord  Hinchin- 

1798.  brook,  13  Ves.  387,  393.     See,  however, 

»  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  1593.  Nicholson  v.  Squire,  16  Ves.  259,  200. 
§  199.   i  2  Barbour's  Ch.  Pr.  679. 


288  INTERLOCUTORY   APPLICATIONS   AND   PETITIONS.      [CHAP.  XV. 

tions  are  usually  filed  by  some  person  not  a  party  in  order  to  ob- 
tain the  benefit  of  proceedings  in  a  cause  pending  in  the  court, 
or  else  to  obtain  an  order  in  relation  to  some  matter  which  is  not 
the  subject  of  any  litigation  in  it.  Petitions  which  are  made  in 
a  cause  are  termed  cause  petitions.3  The  most  common  in- 
stances of  cause  petitions  are  petitions  for  the  appointment  of  a 
next  friend,  petitions  of  intervention,  petitions  for  payment  out 
of  a  fund  in  the  hands  of  an  officer  of  the  court,  and  petitions  for 
leave  to  sue  a  receiver.  The  most  common  instances  of  petitions 
which  are  not  cause  petitions  are  petitions  for  the  appointment, 
removal,  or  resignation  of  a  trustee,  and  petitions  for  the  ap- 
pointment of  the  guardian  of  an  infant  and  the  maintenance  of 
the  infant  out  of  his  property.  But  in  most,  if  not  all,  of  these 
cases  the  application  can  also  be  made  by  motion,  unless  a  long 
statement  of  facts  is  needed  to  show  the  right  of  the  applicant 
to  relief.4  After  a  decree  which  purports  to  finally  dispose  of 
the  suit,  one  plaintiff  cannot  obtain  relief  against  another  by 
means  of  a  petition  setting  up  matters  which  could  not  have 
been  introduced  by  an  amended  or  supplemental  bill ;  at  least 
without  notice  to  the  party  against  whom  he  seeks  relief.5  Or- 
dinarily, a  petition  cannot  be  presented  in  a  cause  before  the 
bill  has  been  filed.6  A  petition  for  leave  to  sue  in  forma  pau- 
peris is  an  exception  to  this  rule ;  and  in  an  extraordinary  case  a 
staj^-order  might  perhaps  be  granted  upon  a  petition  before  the 
filing  of  a  bill.7 

§  200.  Petitions  for  Leave  to  Sue  in  forma  pauperis.  — "  The 
right  to  sue  in  forma  pauperis  originated  in  the  statute  of  Hen. 
VII.  This  and  the  subsequent  statute  of  Hen.  VIII.  are  con- 
fined to  actions  in  the  courts  of  common  law,  and  do  not  extend 
to  defendants.  The  courts  of  equity  have  adopted  the  principle 
of  these  statutes,  and  proceeding  further,  have  extended  the  relief 
to  the  case  of  defendants."  l  An  infant  may  sue  or  defend  in 
this  manner2  in  equity,  but,  unless  so  authorized  by  State  statute, 
not  at  common  law.3     In  the  Southern  District  of  New  York  it 


8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1801.  §  200.   «  Lord  Lyndhurst  in  Oldfield  v. 

4  Jones   v.  Roberts,  12   Simons,  189;  Cobbett,  1  Phil.  613, 615.    See  Ferguson  v. 
Barker  v.  Todd,  15  Fed.  R.  265.  Dent,  15  Fed.  R.  771. 

5  Smith  v.  Woolfolk,  115  U.  S.  143.  2  Ferguson  v.  Dent,  15  Fed.  R.  771. 

6  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1801.  «  Roy  v.  Louisville,  N.  O.  &  T.  R.  Co. 
1  Mayor  of  London  v.  Bolt,  5  Ves.  129 ;  34  Fed.  R.  276. 

Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1801. 


§  200.]      PETITIONS  FOE  LEAVE   TO   SUE   IN   FORMA   PAUPERIS.        289 

has  been  held  that  a  non-resident  may  sue  in  forma  pauperis  at 
common  law.4  A  person  suing  or  being  sued  in  a  represent- 
ative capacity  could  not  obtain  an  order  of  this  character.5 
According  to  the  English  practice,  the  person  desiring  per- 
mission to  sue  or  defend  in  forma  pauperis  was  obliged  to 
present  a  petition  to  the  Master  of  the  Rolls,  containing  a  short 
statement  of  his  case  or  defense,  and  of  the  proceedings,  if  any, 
which  had  been  had  in  the  cause,  and  praying  to  be  admitted 
to  sue  in  forma  pauperis,  and  that  a  counsel  and  solicitor  might 
be  assigned  to  him.6  The  petition,  when  filed  by  a  complain- 
ant, had  to  be  accompanied  by  a  certificate  signed  by  counsel 
"that  he  conceives  the  plaintiff  has  just  cause  to  be  relieved 
touching  the  matter  of  the  petition  for  which  he  has  exhibited 
his  bill ; "  and  in  all  cases  by  the  affidavit  of  the  party  himself 
"  that  he  is  not  worth  in  all  the  world  the  sum  of  51.  after  pay- 
ment of  his  just  debts,  his  wearing  apparel  and  the  matters  in 
question  in  the  cause  only  excepted."  '  When  the  petition  was 
approved,  the  Master  of  the  Rolls  underwrote  an  order  admitting 
the  petitioner  to  sue  or  defend  in  forma  pauperis,  and  assigned 
a  counsel  and  solicitor  to  act  on  his  behalf.8  Such  counsel  or 
solicitor  could  not  refuse  so  to  act  unless  excused  by  the  court 
for  a  sufficient  reason.9  They  could  not  take  any  fee,  profit,  or 
reward  of  the  pauper  for  the  despatch  of  business,  while  the  cause 
was  pending  and  the  party  continued  in  forma  pauperis  ;  except 
paupers'  fees,  which  were  twopence  a  sheet  for  the  labor  of  copy- 
ing.10 Nor  could  any  agreement  be  made  for  the  payment  of 
any  recompense  afterwards.11  For  an  offence  in  either  of  these 
respects,  both  the  lawyer  and  the  client  were  guilty  of  con- 
tempt of  court ;  and  the  client  was  dispaupered,  and  forever 
disqualified  from  suing  as  a  pauper  in  the  same  suit.12  When 
it  was  made  to  appear  to  the  court,  that  a  pauper  had  sold  or 
contracted  for  the  benefit  of  his  suit,  or  any  part  thereof,  while 
the  same  was  depending,  his  suit  was  dismissed  absolutely.13 
No  fees  except  paupers'  fees  could  be  collected  from  the  pauper, 

*  Heckman  v.  Mackey,  32  Fed.  K.  574  1  Daniell's  Ch.  Pr.  (2d  Am.  ed.)   40; 
6  Oldfield  v.    Cobbett,    1    Phil.   613;     Wilkinson  v.  Belsher,  2  Brown  Ch.  C.  272. 

Daniell's  Ch.  Pr.  (2d  Am.  ed.)  44;  Anon.,  8  Daniell's  Ch  Pr.  (2d  Am.  ed.)  47. 

1   Ves.  Jr.  409.     But   see  Thompson   v.  9  Daniell's  Ch.  Pr.  (2d  Am.  ed. )  47,  48. 

Thompson,  cited  in  1  Turner  &  V.  Chan.  10  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  47. 

Pr.  513;  Ferguson  v.  Dent,  15  Fed.  R.  u  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  47. 

771.  »  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  47. 

•  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  46.  13  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  47. 

19 


290  INTERLOCUTORY   APPLICATIONS   AND    PETITIONS.      [CHAP.  XV. 

nor  could  costs  be  decreed  against  him,14  except  for  scandal.15 
In  case  of  success,  however,  the  court  might  allow  him  full 
costs.  "  For  though  he  is  at  no  costs,  or  but  small  expense,  yet 
the  counsel  and  clerks  do  not  give  their  labor  to  the  defendant, 
but  to  the  pauper."  16  The  order  permitting  a  party  to  sue  or 
defend  in  forma  pauperis  had  to  be  served  upon  the  opposite  party 
as  soon  as  possible.  For  the  pauper  was  liable  for  all  costs 
decreed  against  him  before  the  service  of  the  order.17  A  party 
could  be  dispaupered  for  improper  or  vexatious  conduct  in  the 
suit.18 

§  201.  Petitions  of  Intervention.  —  A  petition  of  intervention 
is  filed  in  a  pending  cause  by  a  person  who  is  not  a  party  to  it ; 
and  prays  permission  to  intervene  and  become  a  party,  either 
plaintiff  or  defendant.  The  general  rule  is  that  the  court  has 
no  power  to  allow  a  stranger  to  a  cause  "  to  be  heard  therein 
either  by  petition  or  motion,  except  in  certain  cases  arising  from 
necessity,  as  where  the  pleadings  contain  scandal  against  a 
stranger,  or  where  a  stranger  purchases  the  subject  of  litigation 
pending  the  suit,  and  the  like."  ]  In  a  suit  brought  by  a  member 
of  a  class  on  behalf  of  himself  and  others  similarly  interested, 
another  member  of  the  class  who  desires  the  success  of  the  com- 
plainant2 can  always  intervene,3  upon  payment  of  his  share  of 
the  costs,  expenses,  and  reasonable  counsel  fees  which  have  been 
previously  paid  or  incurred.4  Ordinarily,  such  a  person  will  be 
joined  as  plaintiff.  If  he  is  citizen  of  the  same  State  as  one  of 
the  defendants,  that  will  not  in  most,  if  in  any,  cases,  deprive  the 
court  of  jurisdiction.5      If  there  should  be  any  danger  that  it 

14  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  49;  Co.,  2  Black,  524  ;  Coleman  v.  Martin,  6 

Scatchmer  v.  Foulkard,  1  Eq.  Cases  Abr.  Blatchf.    119  ;    Drake    v.    Goodridge,   6 

125.  Blatchf.  151  ;   Page  v.  Holmes   Burglar 

!5  Rattray   v.    George,    16  Ves.    232.  Alarm  Tel.  Co  ,  18  Blatchf.  118. 
See  also  Murphy  v.  Oldis,  2  Molloy,  475  ;  2  Forbes  v.  Memphis,  El  Paso,  &  Pacific 

Richardson  w.  Richardson,  5  Paige  (N.  Y.),  R.  R.  Co.,  2  Woods,  323. 
58.  3  Ogilvie  v.  Knox  Ins.  Co.,  2  Black, 

16  Scatchmer  v.  Foulkard,  1  Eq.  Cases  539;  s.  c.  22  How.  380;  Myers  v.  Fenn, 

Abr.   125 ;    Rattray   v.   George,  16  Ves.  5  Wall.  205 ;  Ex  parte  Jordan,  94  U.  S. 

232  ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  49,  50.  248 ;  First  Nat.  Ins.  Co.  v.  Salisbury,  130 

M  Ballard  v.  Catling,  2  Keen,  606.  Mass.  303 ;   Hallett  v.  Hallett,   2   Paige 

i8  Wagner  v.  Mears,  3  Simons,  127.  (N.  Y.),  432;  Leigh  v.  Thomas,  2  Ves. 

§  201.   l  Mr.  Justice  Bradley  in  Ander-  Sen.  312  ;  Story's  Eq.  PI.  §  99. 
son  v.  Jacksonville,  P.  &  M.  R.  R.  Co.,  4  Central  Railroad  v.  Pettus,  113  U.  S. 

2  Woods,  628,  629.     See  also  Searles  v.  116  ;  Trustees  v.  Greenough,  105  U.  S. 

Jacksonville,    P.    &    M.    R.    R.    Co.,    2  527. 

Woods,    621,   625  ;    Shields    v.    Barrow,  5  Stewart  v.  Dunham,  115  U.  S.  61. 

17  How.  130,  145 ;   Bronson  v.  Railroad 


§  201.]  PETITIONS    OF   INTERVENTION.  291 

would,  he  may  be  joined  as  a  defendant.6  If  he  intends  to  act 
in  hostility  to  the  original  complainant,  the  court  may,  in  its 
discretion,  add  him  to  the  defendants.7  In  suits  brought  by  or 
against  a  trustee,  or  otherwise  affecting  trust  property,  the  bene- 
ficiaries of  the  trust  will  frequently  be  allowed  to  intervene  for 
the  purpose  of  protecting  their  interests.8  In  suits  brought  by 
or  against  a  corporation,  stockholders  may  be  allowed  to  inter- 
vene if  there  is  any  danger  of  their  being  injured  by  fraud, 
neglect,  or  collusion  on  the  part  of  the  officers  ; 9  and  in  some 
such  cases  stockholders  have  been  allowed  to  file  an  answer  and 
defend  the  suit  in  the  name  of  the  corporation.10  New  parties 
can  always  intervene  by  the  consent  of  the  original  parties.11 
Persons  interested  in  disputing  the  validity  of  a  patent  have  been 
allowed  to  move  to  set  aside  a  decree  recognizing  the  validity  of 
the  patent  entered  by  collusion  in  a  suit  to  which  they  were 
strangers.12  But  such  persons  were  not  allowed  to  intervene  in 
a  suit  to  restrain  the  infringement  of  a  patent  when  they  relied 
upon  a  distinct  defense  not  raised  therein.13 

A  petition  for  leave  to  intervene  should  describe  the  proceed- 
ings in  the  cause  in  which  it  is  filed,  so  that  the  court  can  see 
the  nature  and  condition  of  the  suit.14  It  ma}?  also  contain  a 
statement  of  the  petitioner's  view  of  the  case,  and  pray  in  addi- 
tion to  intervention  the  final  relief  which  he  desires.15  A  paper 
termed  a  cross-bill,  if  otherwise  correct  in  form,  may  be  sustained 
as  a  petition  of  intervention.16  If  any  of  the  original  parties 
desires  to  contest  the  petitioner's  right  to  intervene,  he  must  do 
so  specifically  at  the  hearing  upon  the  petition.17  Leave  to  inter- 
vene when  granted  should  be  given  by  order ; 1S  but  by  proceed- 

6  Brown  v.  Pacific  Mail  S.  S.  Co.,  5  Wall.  459,  464 ;  French  v.  Gapen,  105 
Blatchf.  525,  535.  U.  S.  609,  525. 

7  Galveston  R.  R.  v.  Cowdrey,  11  Wall.  12  Barker  v.  Todd,  15  Fed.  R.  265.  But 
453,  478 ;  Forbes  v.  Memphis,  El  Paso,  &  see  Washburn  &  Moen  Manuf.  Co.  v.  Col- 
Pacific  R.  R.  Co.,  2  Woods,  323.  well  Steel  Barb  Fence  Co.,  1  Fed.  R.  225. 

8  Drew  v.  Harman,  5  Price,  319;  Say-  13  Page  v.  Holmes  Burglar  Alarm  Tel. 
lors  v.   Saylors,  3   Heisk.   (Tenn.)  525;  Co.,  18  Blatchf.  118. 

Birdsong  v.  Birdsong,  2  Head   (Tenn.),  14  Ransom  v.  Davis'  Adm'rs,  18  How. 

289 ;  Carter  v.  New  Orleans,  19  Fed.  R.  295. 

659;  F.  L.  &  Tr.  Co.  v.  Mo.  I.  &  N.  Ry.  15  French  v.  Gapen,  105  U.  S.  509,  519, 

Co.,  21  Fed.  R.  264.  620. 

9  Bayliss  v.  Lafayette,  M.  &  B.  Ry.  16  French  v.  Gapen,  105  U.  S.  509,  519. 
Co.,  8  Biss.  193.  17  French  v.  Gapen,  105  U.  S.  509,  626  ; 

10  Bronson  v.  La  Crosse  &  M.   R.  R.     Myers  v.  Fenn,  6  Wall.  205. 

Co.,  2  Wall.  283.  18  For  the  form  of  an  order,  see  Ex  parte 

11  Galveston  Railroad  v.  Cowdrey,  11     Jordan,  91  U.  S.  248,  249. 


292  INTERLOCUTORY   APPLICATIONS   AND   PETITIONS.      [CHAP.  XV. 

ing  without  objection  an  omission  to  enter  such  an  order  will  be 
waived.19  After  intervention  the  new  parties  are  treated  to  all 
intents  and  purposes  as  if  they  had  been  original  parties  to  the 
suit.20  They  have  the  right  to  appeal  from  the  final  decree,  and 
can  then  object  to  all  interlocutory  proceedings  taken  after  their 
intervention.21 

§  202.  Form  of  Petitions  and  Practice  upon  Them.  —  A  petition 
should  be  properly  entitled  in  the  cause  in  which  it  is  presented.1 
When  not  a  cause  petition,  a  petition  is  entitled  "  In  the  matter 
of  the  application  of,"  &c.  The  petitioner,  if  not  a  party  to  a 
cause  in  which  the  petition  is  filed,  should  state  his  name,  resi- 
dence, and  description.2  A  petition  should  contain  no  scandal  or 
impertinence ;  for  which,  like  any  other  proceeding,  it  may  be 
referred.3  A  petition  need  not  be  signed  by  counsel  unless  it 
seeks  a  rehearing  or  an  appeal.4  Petitions  are  usually  signed  by 
the  part}'  making  them,  either  personally  or  by  his  solicitor.5 

"  Petitions  are  either  for  orders  of  course,  or  for  special  orders. 
Petitions  for  orders  of  course  are  forthwith  granted,  without  any 
attendance  being  ordered  ;  if  they  are  for  special  matters  a  day 
is  appointed  for  hearing  them.  Most  things  which  maybe  moved 
for  of  course,  may  also  be  obtained,  as  of  course,  upon  petition."  6 
All  petitions  which  are  for  matters  not  granted  as  of  course 
must  be  served  upon  all  parties  interested  in  the  matter  prayed 
for  in  them.  Service  is  made  substantially  in  the  same  way  and 
at  the  same  time  before  the  hearing  as  that  of  notices  of  motions.7 
If  actual,  and  not  constructive,  service  is  required,  it  seems  that 
it  must  be  made  by  delivering  a  copy  of  the  petition,  and  at  the 
same  time  showing  the  original  to  the  person  served,8  unless  the 
court  otherwise  directs. 

Objections  to  the  form  of  a  petition  can  only  be  taken  by 
demurrer.9  By  answering  a  respondent  loses  his  right  to  demur,10 
and,  it  has  been  held,  waives  the  objections  that  the  petitioner 
had  a  complete  and  adequate  remedy  at  law,11  that  he  should 

19  Myers  v.  Fenn,  5  Wall.  205.  6  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1802. 

20  French  v.  Gapen,  105  U.  S.  509,  525.  7  See  Rules  5  &  6;  Daniell's  Ch.  Pr. 

21  Ex  parte  Jordan,  94  U.  S.  248,  252.         (2d  Am.  ed.)  1804. 

§  202.   »  Daniell's  Ch.Pr.  (2d  Am.  ed.)  8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1804. 

1802.  9  U.  S.  R.  S.  §  954 ;  Newman  v.  Moody, 

2  Glazbrook  ».  Gillatt,  9  Beav.  492.  19  Fed.  R.  858. 

3  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1803.  u  Newman  v.  Moody,  19  Fed.  R.  858. 
*  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1803.  »  Newman  v.  Moody,  19  Fed.  R.  858. 
5  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1803. 


§  203.] 


ORDERS.  293 


have  proceeded  by  bill  instead  of  by  petition;12  and,  if  a  receiver, 
that  he  has  not  obtained  leave  to  sue.13  Adverse  parties  may 
file  answers  denying  the  facts  stated  in  a  petition,  or  setting  up 
other  facts  in  avoidance.  Such  answers  should  be  verified  by 
affidavit.14  If  the  parties  are  at  issue  as  to  the  facts,  accord- 
ing to  the  more  formal  practice  testimony  may  be  taken  as  in 
the  regular  course  of  a  suit; 15  but  the  more  usual  course  is  for  the 
parties  on  either  side  to  support  their  claim  by  affidavits,  in  the 
same  manner  as  when  supporting  or  opposing  a  motion.16  Pro- 
ceedings upon  the  hearing  of  petitions  are  similar  to  those  upon 
the  hearing  of  motions.17  It  has  been  said  by  Daniell  that  a 
petition  cannot  be  amended  by  adding  to  it  a  statement  of  facts 
which  have  occurred  since  it  was  filed  ; 18  but  an  English  judge 
has  held  otherwise.19 

§  203.  Orders.  —  An  order  is  a  direction  of  the  court  or  a 
judge  thereof  in  writing.  When  contained  in  a  decree,  an  order 
is  termed  a  decretal  order.1  Orders  may  be  made  at  any  place 
within  the  territorial  jurisdiction  of  the  court ;  and  in  a  Circuit 
Court,  if  all  judges  authorized  to  sit  therein  are  absent  from 
the  circuit,  it  seems  that  they  may  be  made  by  a  justice  of  the 
Supreme  Court  sitting  anywhere  within  the  United  States.2 
Orders  upon  interlocutory  applications  should  be  served  upon 
the  solicitor  of  the  opposite  party.  If  the  other  party  takes  a 
step  in  the  action  after  an  ex  parte  order  has  been  obtained  but 
before  its  service,  "  that  step  being  in  itself  regular,  the  order 
which  had  been  obtained  and  not  served  cannot  afterwards  be 
acted  upon,  if  it  will  interfere  with  the  step  so  taken."3  If  it 
is  intended  to  enforce  the  order  by  contempt  proceedings,  it 
should  be  served  personally  upon  the  party  to  be  affected  by 
it,4  unless  possibly  in  an  extraordinary  case  an  order  should  be 
granted  allowing  substituted  service.6 

U  Newman  v.  Moody,  19  Fed.  R.  858.  2  United    States   ».  Louisville    &    P. 

»s  Newman  v.  Moody,  19  Fed.  R.  858.  Canal  Co.,  4  Dill.  601 ;  Searles  v.  Jack- 

14  Mitford's  &  Tyler's  PI.  448.  sonville,   P.  &   M.  R.  R.  Co.,  2  Woods, 

16  Mitford's  &  Tyler's  PI.  448.  621 ;  U.  S.  R.  S.  §  719. 

is  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  1608.  8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1789; 

17  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1805.     Church  v.  Marsh,  2  Bare,  652. 
is  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  1610.  4  Re  Cary,  10  Fed.  R.  622. 

19  Malms'  V.  C.     In   re    Westhrook's  5  Hunter  v. ,  6  Simons,  429 ;  Lor- 

Trusts,  L.  R.  11  Eq.  252.  ton  v.  Seaman,   9   Paige    (N.    Y.),  609; 

§  203.   1  TJ.  S.  R.  S.  §  719.     See  Good-  People  v.  Brower,  4  Paige  (N.  Y.),  405; 

vear  Dental  Vulcanite  Co.  v.  Folsom,  3  Stafford  v.  Brown,  4  Paige  (N.  Y.),  360. 
Fed.  R.  509. 


294  INTERLOCUTORY   APPLICATIONS   AND    PETITIONS.      [CHAP.  XV. 

Interlocutory  orders  made  upon  motion  may  be  altered  or 
vacated  a4"  any  time;6  and  orders  made  ex  parte  upon  petition 
may  also  be  discharged  upon  motion  for  irregularity.'  But, 
according  to  the  English  practice,  orders  made  after  a  heaving 
upon  a  petition  could  not  be  altered  or  discharged  without  the 
filing  of  a  petition  for  a  rehearing,  or  upon  appeal.8  An  order 
granted  after  a  hearing  before  one  judge  of  a  court  will,  unless 
under  extraordinary  circumstances,  not  be  modified  or  vacated  by 
another  except  upon  appeal.9  Unless  limited  by  their  terms,  or,  as 
in  the  case  of  injunctions  granted  by  district  judges,  by  statute,10 
orders  within  the  jurisdiction  of  the  judge  or  court  that  grants 
them  remain  in  force  until  discharged  by  a  subsequent  order ; u 
or  until  the  final  decree,  when,  unless  renewed  by  its  terms,  all 
orders  expire.12  No  appeal  lies  before  the  final  decree  from  an 
interlocutory  order  which  is  not  final  in  its  nature.13  It  has  been 
said  by  Chief  Justice  Taney,  that  "  In  this  respect  the  practice 
of  the  United  States  chancery  courts  differs  from  the  English 
practice.  For  appeals  to  the  House  of  Lords  may  be  taken  from 
an  interlocutoiy  order  of  the  chancellor,  which  decides  a  right 
of  property  in  dispute;  and  therefore  there  is  no  irreparable  in- 
jury to  the  party  by  ordering  his  deed  to  be  cancelled,  or  the 
property  he  holds  to  be  delivered  up,  because  he  may  immedi- 
ately appeal  ;  and  the  execution  of  the  order  is  suspended  until 
the  decision  of  the  appellate  court.  But  the  case  is  otherwise 
in  the  courts  of  the  United  States,  where  the  right  to  appeal  is 
by  law  limited  to  final  decrees.  And  if  by  an  interlocutory  order 
or  decree  he  is  required  to  deliver  up  property  which  he  claims, 
or  to  pay  money  which  he  denies  to  be  due,  and  the  order  is  imme- 
diately carried  into  execution  by  the  Circuit  Court,  his  right  of 
appeal  is  of  very  little  value  to  him,  and  he  may  be  ruined  before 
he  is  permitted  to  avail  himself  of  the  right.  It  is  exceedingly 
important,    therefore,  that   the    Circuit    Courts   of  the    United 

e  Daniell's  Ch.  Pr.  (2d  Am.  ed  )  1616,  &  G.  II.  W.  Co.,  1  Saw.  685,  689  ;  Oglesby 

1807 ;  Eslava  v.  Mazange,  1  Woods,  623,  v.  Attrill,  14  Fed.  R.  214. 

027.  10  U.  S.  R  S.  §  719;  Gray  v.  Chicago, 

i  In  re  Marrow,  Craig  &  Ph.  142  ;  Dan-  I.  &  N.  R.  R.  Co.,  1  Woolw.  63. 

iell's  Ch.  Pr.  (2d  Am.  ed.)  1807.  u  Eslava  v.  Mazange,  1   Woods,  623, 

8  Bishop  v.  Willis,  2  Ves.   Sen.  113;  627. 

In  re  Marrow,  Craig  &  Ph.  142 ;  Daniell's  12  Gardner  v.  Gardner,  87  N.  Y.   14 ; 

Ch.  Pr.  (2d  Am.  ed.)  1808.    But  see  In  re  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1902. 

Dovenby  Hospital,  1   Myl.   &   Cr.  279;  13  See  Chapter  XXX,  Writs  of  Error 

West  v.  Smith,  3  Beav.  306.  and  Appeals. 

9  Cole  Silver  Mining  Co.  v.  Virginia 


§  204]         JUDGES  WHO  MAY  GRANT  ORDERS.  295 

States,  in  framing  their  interlocutory  orders,  and  in  carrying 
them  into  execution,  should  keep  in  view  the  difference  between 
the  right  of  appeal,  as  practised  in  the  English  chancery  juris- 
diction, and  as  restricted  by  the  act  of  Congress,  and  abstain 
from  changing  unnecessarily  the  possession  of  property,  or  com- 
pelling the  payment  of  money  by  an  interlocutory  order."  u 

§  204.  Judges  who  may  grant  Orders.  —  An  order  may  be  made 
by  any  judge  authorized  to  sit  in  the  court  in  which  the  cause  is 
pending.  In  the  Supreme  Court  it  is  the  custom  for  each  justice 
to  refer  to  the  full  bench  every  application  of  importance  which 
is  made  to  him.1  An  order  in  a  case  pending  in  a  Circuit  Court 
may  be  made  by  the  justice  of  the  Supreme  Court  allotted  to 
that  circuit;2  or  by  any  justice  of  the  Supreme  Court  requested, 
in  writing,  by  the  circuit  justice  to  hold  court  in  his  circuit  ;3  or 
if  there  is  no  justice  of  the  Supreme  Court  allotted  to  that  cir- 
cuit, by  any  justice  of  the  Supreme  Court  requested  by  the  Chief 
Justice  to  hold  court  there;4  by  the  circuit  judge  of  that  circuit;6 
by  the  district  judge  of  that  district;6  or  by  any  judge  author- 
ized to  hold  the  District  Court  in  that  district ; 7  or  by  any  two 
of  those  judges.8 

There  are  nine  circuits.9  The  first  circuit  includes  the  dis- 
tricts of  Rhode  Island,  Massachusetts,  New  Hampshire,  and 
Maine.10  •  The  second  circuit  includes  the  districts  of  Ver- 
mont, Connecticut,  and  New  York.11  The  third  circuit  includes 
the  districts  of  Pennsylvania,  New  Jersey,  and  Delaware.12 
The  fourth  circuit  includes  the  districts  of  Maryland,  Virginia, 
West  Virginia,  North  Carolina,  and  South  Carolina.13  The  fifth 
circuit  includes  the  districts  of  Georgia,  Florida,  Alabama,  Mis- 
sissippi, Louisiana,  and  Texas.14  The  sixth  circuit  includes  the 
districts  of  Ohio,  Michigan,  Kentucky,  and  Tennessee.15  The 
seventh  circuit  includes  the  districts  of  Indiana,  Illinois,  and 
Wisconsin.16  The  eighth  circuit  includes  the  districts  of  Colo- 
rado, Nebraska,  Minnesota,  Iowa,  Missouri,  Kansas,  Arkansas, 

14  Forgay  v.  Conrad,  6  How.  201,  205.  8  rj.  S.  R.  S.  §  609. 

§  204.   i  Spies  v.  Illinois,  123  U.  S.  131.  9  U.  S.  R.  S.  §  604. 

2  U.  S.  R.  S.  §§  605,  606,  609.  *>  U.  S.  R.  S.  §  604. 

8  U.  S.  R.  S.  §  617.    See  Supervisors  »  U.  S.  R.  S.  §  604. 

v.  Rogers,  7  Wall.  175.  12  U.  S.  R.  S.  §  604. 

4  U.  S.  R.  S.  §  618.  »  U.  S.  R.  S.  §  604. 

6  U.  S.  R.  S.  §  609.  M  U.  S.  R.  S.  §  tin  I. 

6  U.  "S.  R.  S.  §  609.  is  U.  S.  R.  S.  §  604. 

7  U.  S.  R.  S.  §§  591-603.  "  TJ.  S.  R.  S.  §  604. 


29G  INTERLOCUTORY   APPLICATIONS   AND    PETITIONS.       [CHAP.  XV. 

North  Dakota,  and  South  Dakota.17  The  ninth  circuit  includes 
the  districts  of  California,  Oregon,  Nevada,  Washington,  and 
Montana.18 

An  order  in  a  case  pending  in  a  District  Court  may  be  made 
by  the  judge  of  that  district ;  or,  if  such  office  is  vacant,  by 
the  judge  of  any  other  district  within  the  same  State  ; 19  in 
case  of  the  disability  of  the  district  judge  for  that  district,  or 
such  an  accumulation  or  urgency  of  business  as  to  make  the 
public  interest  require  his  appointment,  by  any  other  district 
judge  within  the  same  circuit  designated  and  appointed  after  a 
certificate,  under  the  court's  seal,  by  the  clerk  as  to  those  facts, 
by  the  circuit  justice  or  circuit  judge  of  the  circuit,  or,  if  both 
of  them  are  absent  from  the  circuit  and  unable  to  make  such 
designation  and  appointment,  by  the  Chief  Justice  of  the  United 
States  ;20  in  the  District  Court  for  the  Northern  District  of  New 
York,  when  the  judge  thereof  is  disabled  and  so  notifies  the 
judge  of  the  Southern  District  of  New  York,  by  the  latter 
judge  ;  21  in  the  District  Court  for  the  Southern  District  of  New 
York,  when  the  judge  thereof  is  disabled  and  so  notifies  the 
judge  of  the  Eastern  District,  by  the  latter  judge  ;22  in  the  same 
court  by  the  judge  of  the  Eastern  District  of  New  York,  when- 
ever the  judge  of  the  Southern  District  deems  it  desirable  on 
account  of  the  pressure  of  public  business  that  the  former  shall 
perform  judicial  duties  in  his  district,  and  has  entered  an  order 
to  that  effect ; 23  in  one  of  the  District  Courts  of  Florida,  by  the 
judge  of  the  other  district,  in  a  place  where  a  term  of  such  court 
is  regular^  held,  when  the  judge  of  the  district  has  filed  in  the 
clerk's  office  a  certificate,  stating  that  he  is  disabled  to  hold  a 
term  of  court  there,  and  requesting  the  judge  of  the  other  district 
to  hold  the  same.24 

"  U.  S.  R.  S.  §  604 ;  25  St.  at  L.  ch.  «•  U.  S.  R.  S.  §§  591-596. 

180,  §  21.  21  U.  S.  R.  S.  §  599. 

i8  U.  S.  R.  S.  §  604 ;   25  St.  at  L.  ch.  22  U.  S.  R.  S.  §  599. 

180,  §  21.  «*  U.  S.  R.  S.  §  600. 

is  U.  S.  R.  S.  §  603.  2*  U.  S.  R.  S.  §  598. 


§  206.]  INJUNCTIONS.  297 


CHAPTER   XVI. 

INJUNCTIONS. 

§  205.  Definition,  Classification,  and  Objects  of  Injunctions.  —  An 
injunction  is  a  writ  issued  from  a  court  of  equity  commanding  a 
person  to  do  an  act  or  acts  other  than  the  payment  to  the  com- 
plainant of  a  sum  of  money,  or  not  to  do  an  act  or  acts  specified 
therein.  According  to  the  different  aspects  from  which  they  are 
considered,  injunctions  are  classified  as  judicial  writs,  and  writs 
remedial  ;  as  mandatory  and  prohibitory  ;  as  provisional  and 
perpetual  ;  or  as  common  and  special.  Before  describing  the 
different  characteristics  of  each  of  these  classes,  it  may  be  well 
to  refer  briefly  to  the  different  occasions  for  the  issue  of  the  writ. 
Injunctions  may  be  obtained  to  enforce  a  trust  or  other  purely 
equitable  right,  to  compel  obedience  to  a  covenant  or  other  con- 
tract affecting  land,  to  compel  the  obedience  of  corporations  to 
their  charters,  to  prevent  a  multiplicity  of  suits,  and  generally  to 
prevent  an  irreparable  injury  for  which  damages  at  law  would  be 
no  adequate  remedy,  and  also  in  cases  in  which  they  are  ex- 
pressly authorized  by  statute. 

§  206.  Injunctions  to  enforce  Trusts  and  other  purely  Equitable 
Rights. — As  trusts  and  other  purely  equitable  rights  are  not 
recognized  in  courts  of  law,  equity  will  always  interfere  to  pro- 
tect them  by  injunction  when  they  are  threatened  with  infringe- 
ment.1 On  this  account  an  injunction  may  be  obtained  to  prevent 
the  revelation  or  use  of  a  secret  of  manufacture  by  a  workman 
who  has  learned  it  under  an  express  or  implied  promise  of 
secrecy,  or  one  to  whom  such  a  person  has  disclosed  it ; 2  and  to 
restrain  the  publication  of  lectures,3  manuscripts,4  or  works  of 

§  206.   J  Scott  v.  Becher,  4  Price  340;  body  v.  Norfolk,  98  Mass.  452.     But  see 

In  re  Chertsy  Market,  6  Price,  26i ;  Sloo  v.  Newbery  v.  James,  2  Meriv.  4  16. 

Law,  3  Blatclif.  459;   Draper    v.   Davis,  8  Abernethy  v.  Hutchinson,  3  L.J.  Ch. 

104  U.  S.  347  ;   Cowles  v.  Whitman,  10  209. 

Conn.  121 ;  Bispham's  Eq.  §  425  ;  Kerr  on  *  Stapleton   v.  Foreign  Vineyard  As- 

Injunctions,  172,  173.  eociation,  12  W.  R.  976 ;  Scheile  v.  Brakell, 

2  Yovatt  v.  Winyard,  1  Jac.  &  Walk.  11  W.  R.  796.     See,  however,  Southey  v. 

3'.)4;  Morison  v.  Moat,  9  Hare,  241 ;  Pea-  Sherwood,  2  Meriv  435. 


298  INJUNCTIONS.  [CHAP.  XVI. 

art5  heard  or  obtained  under  an  express  or  implied  agreement  not 
to  publish  or  reproduce  them.  Whether  or  not  the  publication 
of  private  letters  which  have  no  value  as  literary  productions 
can  be  restrained  at  the  pra}-er  of  their  writer,  upon  the  ground 
that  it  would  be  a  breach  of  an  implied  trust,  is,  under  the 
authorities,  an  open  question.6 

§  207.  Injunctions  to  restrain  Corporations  from  violating  their 
Charters.  —  The  charters  of  corporations  are  considered  "  in  the 
light  of  contracts  made  by  the  legislature  on  behalf  of  every 
person  interested  in  anything  to  be  done  under  them." x  On 
account  of  the  irreparable  injury  that  would  otherwise  ensue, 
and  in  the  case  of  corporations  to  whom  the  State's  right  of  emi- 
nent domain  is  delegated,  because  they  are  trustees,2  the  diso- 
bedience of  a  corporation  to  its  charter  may  be  restrained  by 
injunction,  either  at  the  suit  of  the  attorney-general3  of  the  State 
to  which  it  owes  its  existence,  or  of  any  individual  who  suffers 
special  injury  thereby.4  This  rule  applies  whether  the  act  com- 
plained of  has  been  forbidden  expressly,  or  merely  by  implication 
as  not  included  within  the  powers  expressly  given  to  the  corpor- 
ation and  those  which  are  necessary  for  their  proper  exercise.5 
"  It  is,"  said  Lord  Hatherley,  "  a  principle  of  public  policy  that 
where  Parliament  has  authorized  a  company  to  raise  a  large 
capital  for  a  specified  purpose,  the  privilege  confers  no  right 
upon  the  companjr  to  employ  their  capital  in  competition  with 
the  general  public  upon  speculations  of  a  different  character."6 
"  It  is  because  these  companies,  being  armed  with  the  power 
of  raising  large  sums  of  money,  if  they  were  allowed  to  apply 
their  funds  to  purposes  other  than  those  for  which  they  were 
constituted,  might  acquire  such  a  preponderating  influence  and 
command  over  some  particular  branch  of  trade   or  commerce, 

5  Prince  Albert  v.  Strange,  1  Macn.  &  2  M'Coy  v.  Chicago,  I.  St.  L.  &  C.  R. 
G.  25,  42.  R.  Co.  13  Fed.  R.  3. 

6  Woolsey  v.  Judd,  4  Duer  (N.Y.),  379 ;  3  Attorney-General  v.  Great  Northern 
and  Eyre  v.  Higbee,  35  Barb.  (N.  Y.),  502,  Ry.  Co.,  1  Dr.  &  Sm.  154  ;  Attorney-Gen- 
hold  that  they  can  :  and  Judge  Story  con-  eral  v.  Railroad  Companies,  35  Wis.  425. 
curs  in  this  view,  in  Story's  Eq.  Jur.  §§  But  see  Attorney-General  v.  Utica  Ins. 
946-948.     But  the  opposite  view  is  main-  Co.,  2  Johns.  Ch.  (N.  Y.)  371. 

tained   in   Gee   v.  Pritchard,   2   Swanst.  4  Bostock  v.  North   Staffordshire  Ry. 

402  ;   Wetmore  v.   Scovell,  3  Edw.   Ch.  Co.,  3  Sm.  &  Giff.  283;  Colman  v.  The 

(N.  Y.)  515;  and  High  on  Injunctions,  Eastern  Counties  Ry.  Co.,  10  Beav.  1. 

§  1012.  6  Attorney-General  v.  Great  Northern 

§  207.  1  Blakemore  v.  Glamorganshire  Ry.  Co..  1  Dr.  &  Sm.  154. 

Canal  Navigation,  1  Myl.  &  K.  154,  1G2.  6  Cited  in  Kerr  on  Injunctions,  p.  473. 


§  207.]  INJUNCTIONS   AGAINST   CORPORATIONS.  299 

as  would  enable  them  to  drive  the  ordinary  private  trader  from 
the  field,  and  create  in  their  own  favor  a  practical  monopoly, 
whereby  the  interests  of  the  public  would  be  most  seriously 
injured."7  When  the  corporation  violates  its  charter  by  re- 
fusing to  perform  an  act  thereby  expressly  or  impliedly  com- 
manded, it  has  been  held  that  the  attorney-general  cannot 
compel  its  obedience  by  a  mandatory  injunction,  but  should 
in  such  a  case  apply  for  a  mandamus.8  A  private  individual 
suing  to  enjoin  a  corporation  from  violating  its  charter  must 
show  some  special  damage  caused  to  himself  by  the  breach.9  A 
shareholder  in  a  company  is  considered  to  incur  special  damage 
by  its  diverting  its  funds  to  other  purposes  than  its  charter  auth- 
orizes, and  can  obtain  an  injunction  to  restrain  its  so  doing,10 
even,  it  has  been  held,  if  he  bought  shares  in  the  company  for 
the  very  object  of  preventing  it ; n  provided  that  he  sues  in  good 
faith,  and  does  not  act  as  the  mere  puppet  of  a  rival  corpora- 
tion ;12  and  that  the  suit  is  not  brought  "  against  the  corporation 
and  other  parties,  founded  on  rights  which  may  properly  be 
asserted  by  the  corporation."  13  The  holder  of  a  security  for  an 
indebtedness  of  a  corporation  is  also,  it  seems,  entitled  to  an  in- 
junction in  a  similar  case  ;  u  but  not  an  unsecured  creditor,15 
except  under  very  extraordinary  circumstances.16  One  whose 
land  has  been  taken  from  him  for  the  use  of  a  corporation  by  the 
exercise  of  the  State's  right  of  eminent  domain  can  obtain  an  in- 
junction to  restrain  the  use  of  the  land  for  any  other  purpose  than 
is  allowed  by  the  company's  charter,17  provided  at  least  that  he 
can  show  that  he  is  thereby  injured.18     It  is,  however,  no  proper 

7  Attorney-General  v.  Great  Northern  don,  B.  &  S.  C.  Ry.  1  H.  &  M.  439; 
Ry.  Co.,  1  Dr.  &  Sm.  154,  159,  100.  Robson  v.  Dodds,L.R.8  Eq.  301 ;  Rogers 

8  Attorney-General  v.  Birmingham  &  v.  Oxford,  Worcester,  &  Wolverhampton 
Oxford  Junction  Ry.  Co.,  15  Jur.  1024  ;  Ry.  Co.,  2  De  G.  &  J.  662. 

The  People  v.  The  Albany  &,  Vt.  R.  R.  Co  ,  13  Rule  94  ;    Ilawes   v.  Oakland,   104 

24  N.  Y.  261.  U-  S.  450. 

9  Chamberlaine  v.  Chester  &  B.  Ry.  u  Bagshaw  v.  Eastern  Union  Ry.  Co., 
Co.,  1  Exch.  869,  877  ;  Railroad  Co.  v.  2  Macn.  &  G.  389 ;  Herrick  v.  Grand 
Ellerman,  105  U.  S.  166,  173,  174.  Trunk  Ry.  Co.,  7  Upper  Canada  Law 

io  Colman  v.  The  Eastern  Counties  Ry.  Journal,  240. 

Co.,  10  Beav.  1.  15  Syers  v.  Brighton  Brewery  Co.,  11 

ii  Colman  v.  The  Eastern  Counties  Ry.  L.  T.  (n.  s.)  560  ;  Mills  v.  Northern  Ry. 

Co.,    10   Beav.    1 ;    Attorney-General    v.  of  Buenos  Ayres  Co.,  23  L.  T.  (n.  s.)  719. 

Great  Northern  Ry.  Co.,  1  Dr.  &  Sin.  1G  Evans   v.  Coventry,  5  De  G.  M.   & 

154  ;  Bloxam  v.  Met.  Ry.  Co.,  L.  R.  3  Ch.  G.  91 1. 

337  H  Bostock  v.  North  Staffordshire  Ry. 

i2  Fovrest  v.  Manchester,  S.  &  L.  Ry.     Co.,  3  Sm.  &  Giff.  283. 
Co.,  4  De  G.  F.  &  J.  126 ;  Filder  v.  Lon-         18  East   &  West   India  Docks  &.  Bir- 


300  INJUNCTIONS.  [CHAP.  XYI. 

ground  for  complaint  by  an  individual  that  a  corporation  by 
exercising  powers  not  conferred  upon  it  by  its  charter  enters  into 
competition  with  him,  and  thereby  diminishes  the  profits  of  his 
trade  or  calling.19  An  English  judge  has  said  :  "  Where  a  statute 
prohibits  the  doing  of  a  particular  act  affecting  the  public,  no 
person  has  a  right  of  action  against  another  merely  because  he 
has  done  the  prohibited  act.  It  is  incumbent  on  the  party  com- 
plaining to  allege  and  prove,  that  the  doing  of  the  act  prohibited 
has  caused  him  some  special  damage,  some  peculiar  injury,  be- 
yond that  which  he  may  be  supposed  to  sustain  in  common  with 
the  rest  of  the  Queen's  subjects,  by  an  infringement  of  the  law. 
But  where  the  act  prohibited  is  obviously  prohibited  for  the 
protection  of  a  particular  party,  there  it  is  not  necessary  to  allege 
special  damage."  20 

§  208.  Injunctions  to  enforce  the  Specific  Performance  of  Cov- 
enants and  other  Contracts  affecting  Land.  —  As  no  two  pieces  of 
land  are  exactly  alike,  equity  considers  that  in  no  case  can  dam- 
ages in  money  be  adequate  compensation  for  the  breach  of  a 
covenant  or  other  contract  affecting  land.1  Accordingly,  the 
specific  performance  of  contracts  for  the  purchase  or  sale  of  land 
and  of  covenants  affecting  the  same,  will  be  specifically  enforced 
with  the  aid  of  an  injunction,  whenever  they  are  mutual,2  cer- 
tain,3 not  unconscionable  ; 4  and  their  enforcement  would  be 
practicable.5  The  rule  concerning  the  enforcement  of  cove- 
nants affecting  land  has  been  thus  stated :  "  If  the  construction 
of  the  instrument  be  clear  and  the  breach  clear,  then  it  is 
not  a  question  of  damage,  but  the  mere  circumstance  of  the 
breach  of  covenant  affords  sufficient  ground  for  the  court  to 
interfere  by  injunction."6     This  is,  however,  subject  to  the  ex-" 

mingham  Junction  Ry.  Co.  v.  Dawes,  11  3  Colson  v.  Thompson,  2  Wheat.  326; 

Hare,  363  ;  Lee  v.  Milner,  2  Y.  &  C.  611 ;  Bispham's  Eq.  §  377. 
Ware  v.  Regents  Canal  Co.,  3  De  G.  &,  J.  4  Surget     v.     Byers,    Hempst.    715  ; 

212.  Roundtree  v.  McLain,  Hempst.  243  ;  Miss. 

19  Railroad  Co.  v.  Ellerman,  105  U.  S.  &  Mo.  Railroad  Co.  v.  Cromwell,  91  U.  S. 
166,  173,  174.  643  ;  Bispham's  Eq.  §  376. 

20  Pollock,  C.  B.  in  Chamberlaine  v.  5  Ross  v.  Union  Pacific  R.  R.  Co.,  1 
Chester  &  B.  Ry.  Co.,  1  Exchequer,  869,  Woolw.  26 ;  Fallon  v.  Railroad  Co.,  1 
877.     See  Blakemore  v.  Glamorganshire  Dill.  121  ;  Bispham's  Eq.  §  377. 

Canal  Navigation,  1  Mylne  &  Keen,  154,  6  Vice  Chancellor  Wood  in  Tipping  v. 

162.  Eckersley,  2  K.  &  J.  264.     See  also  Lord 

§  208.    1  Adderley  v.  Dixon,  1  Sim.  &  Manners  v.  Johnson,  L.  R.  1  Ch.  D.  673 ; 

Stu.  607  ;  Bispham's  Eq.  §  375.  Lloyd  v.  London,  Chatham,  &  Dover  Ry. 

2  Dorsey  «;.  Packwood,  12  How.  126;  Co.,  2  De  G.  J.  &  S.  568;    Trustees  of 

Bispham's  Eq.  §  377.  Columbia  College  v.  Lynch,  70  N.  Y.  440. 


§  200.]      INJUNCTIONS    TO    RESTRAIN    A   MULTIPLICITY    OF    SUITS.      301 

ception  that  if  it  would  be  against  public  policy  to  enforce  the 
covenant,  —  for  example,  if  a  change  of  circumstances  have  ren- 
dered it  improper  to  use  land  in  accordance  with  the  terms  of  a 
covenant  regulating  its  use,  or  if,  on  account  of  such  a  change, 
the  object  of  the  parties  to  the  covenant  would  not  be  accom- 
plished by  its  enforcement,  —  equity  will  not  interfere.7 

§  209.  Injunctions  to  restrain  a  Multiplicity  of  Suits.  —  Injunc- 
tions are  granted  in  order  to  prevent  a  multiplicity  of  suits  under 
bills  of  peace.  Bills  of  peace  are  bills  to  restrain  a  number  of 
persons  from  endeavoring  to  enforce  in  different  suits  the  same 
or  similar  claims  ; 2  or  to  prevent  a  single  person  from  reiterating 
in  several  successive  suits  the  same  unsuccessful  claim ; 2  or  to 
prevent  a  person  from  levying  a  tax,  the  payment  of  which  will 
subject  the  plaintiff  to  the  hazard  of  a  number  of  suits  from  other 
parties  ;3  bills  of  interpleader4  and  in  the  nature  of  interpleader  ;5 
bills  to  enjoin  a  continuing  trespass,6  nuisance,7  infringement 
of  patents,8  copyrights9  and  trade-marks;10  and  bills  to  quiet 
possession.11  Each  of  these  classes  of  bills,  except  the  last  two, 
have  been  already  sufficiently  described.  Injunctions  to  restrain 
a  continuing  trespass,  nuisance,  and  the  infringement  of  patents, 
copyrights  and  trade-marks,  are  more  often  said  to  be  granted 
to  prevent  irreparable  injury,  and  will,  therefore,  be  considered 
under  that  head.  An  injunction  to  quiet  the  possession  before 
the  hearing  formerly  issued  to  restrain  the  party  to  whom  it  was 
directed  from  taking  forcible  possession  of  lands  pending  litiga- 
tion concerning  them.  It  was  issued  at  the  request  of  either  a 
plaintiff  or  a  defendant  to  a  suit,  if  the  applicant  had  had  peace- 
able possession  of  the  premises  for  the  three  years  preceding  the 

"  Duke  of  Bedford  v.  British  Museum,  4  Louisiana  State  Lottery  Co.  v.  Clark, 
2  M.  &,  K.  552  ;  Troy  &  B.  R.  R.  Co.  v.  16  Fed.  R.  20 ;  s.  c.  4  Woods,  169 ;  Mc- 
Boston,  H.  T.  &  W.  Ry.  Co.,  86  N.  Y.  Laughlin  v.  Swarm,  18  How.  217;  City 
107;  Trustees  of  Columbia  College  v.  Bank  v.  Skelton,  2  Blatchf.  14.  See  §88. 
Thacher,  87  N.  Y.  311 ;  Leake's  Digest  of  6  Dorn  v.  Fox,  61  N.  Y.  264.  See  §  89. 
the  Law  of  Contracts,  1152.  But  see  6  Northern  Pacific  R.  R.  Co.  v.  Bur- 
Lloyd  v.  London,  Chatham,  &  Dover  Ry.  lington  &  Missouri  R.  R.  Co  ,  2  McCrary, 
Co.,  11  Jur.  (n.  s.)  380.  203.     See  §  215. 

§  209.  »  Sheffield  Water  Works  v.  Yeo-  7  Woodruff  v.  North  Bloomfield  Gravel 

mans,  L.  R.  2  Ch.  App.  8.  Mining  Co.,  18  Fed.  R.  753.    See  §  214. 

9  Earl  of  Bath  v.   Sherwin,  4  Brown  8  U.  S.  R.  S.  §  4921.     See  §  216. 

Parliamentary  Cases,  373.  9  U.  S.  R.  S.  §  4970.     See  §  217. 

8  Cummings   v.   National    Bank,   101  10  Shaw  Stocking  Co.  v.  Mack,  12  Fed. 

U.  S.  153,  157  ;  Pelton  v.  National  Bank,  R.  707.    See  §  218. 

101  U.  S.  143,  148;   Hills  v.  Exchange  u  Hughes  v.  Morden  College,  1  Ves. 

Bank,  105  U.  S.  319.  Sen  188. 


302  INJUNCTIONS.  [CHAP.  XVI. 

filin"-  of  the  bill,  and  his  interest  therein  had  not  been  determined 
by  forfeiture,  surrender,  or  other  lawful  means.  He  was  required 
to  swear  to  these  facts  in  his  bill,  and  according  to  the  practice 
before  Lord  Bacon's  time,  to  give  a  bond  to  the  amount  of  £10 
as  a  security  that  the  information  so  given  was  true.12  Such 
injunctions  were  formerly  very  common  ;  but  have  now  fallen 
into  disuse.  The  last  reported  instance  of  one  was  in  Lord 
Hardwicke's  time.13 

§  210.  Injunctions  to  prevent  Irreparable  Injury  for  "which  the 
Remedy  at  Law  is  inadequate  ;  in  general.  —  The  most  ordinary 
ground  upon  which  an  injunction  issues,  and  one,  indeed,  which 
includes  all  but  the  first  of  those  previously  mentioned,  is  that, 
otherwise,  the  plaintiff  would  suffer  an  irreparable  injury,  for 
which  damages  at  law  would  be  no  adequate  remedy.  It  would 
be  impossible  specifically  to  mention  here  all  the  different  in- 
stances in  which  an  injunction  issues  for  this  reason  ;  but  the 
following  is  an  enumeration  of  those  of  more  frequent  occurrence 
which  have  not  been  previously  described.  An  injunction  will 
issue  on  account  of  the  inadequacy  of  the  remedy  at  common 
law ;  to  stay  proceedings  in  other  courts,  either  of  law,  equity, 
or  admiralty  j1  to  restrain  the  indorsement  or  negotiation  of  notes 
and  bills  of  exchange,  the  sale  of  land,  the  sailing  of  a  ship,  the 
transfer  of  stock,  or  the  alienation  of  a  specific  chattel;2  to 
restrain  the  commission  of  every  species  of  waste  or  act  in  the 
nature  of  waste  ;3  to  suppress  the  continuance  of  a  public  or  pri- 
vate nuisance  ;4  to  prevent  a  threatened  destructive  trespass  ;5  to 
prevent  the  infringement  of  patents  ;6  to  prevent  the  violation  of 
copyright,  whether  by  printed  publications,  or  theatrical  represen- 
tation, or  otherwise  ; 7  to  prevent  the  unauthorized  use  of  trade- 
marks,8 and  the  opening  of  private  letters;9  to  compel  the  per- 
formance or  prevent  the  breach  of  contracts  other  than  those 
for  the  payment  of  money  only  ; 10  and,  under  very  extraordinary 
circumstances,  to  compel  the  delivery  of  personal  property 
wrongfully  withheld.11 

§   211.    Injunctions   to    stay    Proceedings    in    other   Courts.  —  In- 
junctions to  stay  proceedings  in  other  courts  are  of  much   less 


12  Eden    on    Injunctions,    ch.  xvi.   p. 

»  §  213. 

8  §  218. 

240. 

4  §  214. 

9  §219. 

13  Hughes  v.  Morden  College,  1  Ve3. 

5  §215 

io  §  220. 

Sen. 188. 

6  §  216. 

«  §  221. 

§  210.     »  §  211.                2  §  212. 

7  §217. 

§  211.]  INJUNCTIONS  TO  STAY  PROCEEDINGS  IN  OTHEE  COUETS.  303 

frequent  occurrence  now  that  discovery  and  the  inspection  of 
documents  can  be  obtained  at  common  law  without  the  aid  of 
equity,  than  they  were  formerly  ;  but  they  are  still  occasionally 
issued,  especially  in  bankruptcy.1  Such  injunctions  must  not  be 
confounded  with  writs  of  prohibition,  which  are  addressed  to  the 
judges  of  a  court,  whereas  injunctions  are  directed  to  the  parties 
to  the  proceedings  which  it  is  desired  to  restrain.2  Ordinarily, 
when  two  courts  have  a  concurrent  jurisdiction  over  the  same 
thing,  whichever  court  was  first  possessed  of  the  cause  has  a 
right  to  proceed  with  the  same,  and  proceedings  in  it  will  not  be 
prohibited  or  restrained  in  another.3  Accordingly  the  Revised 
Statutes  of  the  United  States  expressly  provide  that  "  The  writ 
of  injunction  shall  not  be  granted  by  any  court  of  the  United 
States  to  stay  proceedings  in  any  court  of  a  State,  except  in 
cases  where  such  injunction  may  be  authorized  by  any  law  re- 
lating to  proceedings  in  bankruptcy."4  Similarly,  a  State  court 
has  no  power  to  stay  by  injunction  a  proceeding  in  a  court 
of  the  United  States.5  It  has  been  held,  however,  that  a  Fed- 
eral court  has  power  to  issue  an  injunction  to  stay  proceedings 
in  a  State  court  which  interfere  with  the  enforcement  of  one  of 
its  own  judgments,  and  which  have  been  instituted  or  continued 
after  the  beginning  or  the  removal  of  the  suit  in  which  the 
injunction  was  granted.6  But  proceedings  in  a  State  court 
cannot  be  enjoined  upon  the  sole  ground  that  the}r  are  taken 
under  a  State  statute  which  is  repugnant  to  the  Federal  Consti- 
tution.7 A  judge  of  a  Circuit  or  District  Court  has  no  power  to 
enjoin  the  enforcement  of  a  judgment  in  a  State  court  after  an 
appeal  to  the  Supreme  Court  of  the  United  States  and  a  super- 
sedeas.    That  can  only   be  done,  if  at   all,  by  a  justice  of  the 

§211.   >  McLean  v.  Lafayette  Bank,  3  386;   Hamilton    v.   Walsh,    23   Fed.   R. 

McLean,  185.    In  re  Schwarz,  14  Fed.  It.  420 ;  Tiff t  v.  Iron  Clad  Manuf.  Co.,  16 

787.  Blatchf.   48;   Yick   Wo.  v.   Crowley,  26 

2  See  Eden  on  Injunctions,  ch.  ii.  Fed.  R.  207. 

8  Nicholas  v.   Nicholas,  Free,  in  Ch.  6  McKim  v.  Voorhies,  7  Cranch,  279; 

6 If. ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1845.  Duncan  v.  Darst,  1  How.  301-306  ;  City 

But  see  the  Erie  Ry.  Co    v.  Ramsey,  45  Bank  of  New  York  v.  Skelton,  2  Blatchf. 

N.  Y.  637.  14. 

*  U.  S.  R.  S.  §  720.     See  The  Slaugh-  6  French    v.    Hay,    22    Wall.    250  ; 

ter  House  Cases,  10  Wall.  273  ;  Haines  t\  Dietzsch  v.  Huidekoper,  103  U.  S.  494  ; 

Carpenter,  91  U.  S.  254  ;  Dial  v.  Reynolds,  Fisk    v.    Union    Pacific    R.    R.     Co.,    10 

96  U.  S.  340;  Rensselaer  &  S.  R.  R.  Co.  Blatchf.  518;  Sharon  v.  Terry,  36  Fed. 

v.  Bennington  &   R.  R.  R.  Co.,  18  Fed.  R.  337. 

R.  617  ;   Missouri,  K.   &  T.   Ry.   Co.  v.  »  Rensselaer  &  S.  R.  Co.  v.  Bennington 

Scott,  13  Fed.    R.  1J6,   s.  c.  4   Woods,  &  R.  R.  Co.,  18  Fed.  K.  617. 


304  INJUNCTIONS.  [chap.  XVI. 

Supreme  Court.8  It  has  been  held  that  a  Federal  court  can 
prevent  by  injunction  the  levy  of  a  State  sheriff  under  State 
process  against  a  State  judgment-debtor  upon  the  property  of  a 
stranger  to  the  suit  and  process ; 9  that  a  Federal  court  may 
enjoin  the  inequitable  use  of  a  judgment  of  a  State  court,  when 
the  validity  of  the  judgment  is  not  thereby  impaired  ; 10  and  that 
under  the  act  of  Congress  limiting  the  liability  of  the  owners  of 
ships,  a  District  Court  of  the  United  States  may  issue  a  stay-order 
restraining  proceedings  previously  begun  in  State  courts.11  An 
injunction  granted  by  a  State  court  to  stay  proceedings  in  the 
same  or  another  tribunal  of  the  State  remains  in  force  after  a 
removal  to  a  Federal  court  of  the  suit  in  which  it  was  granted  ;12 
although  such  an  injunction  could  not  be  originally  issued  in  the 
Federal  court  in  a  suit  removed  from  a  State  court.13  An  in- 
junction will  not  be  issued  to  stay  a  criminal  proceeding,14  a  pro- 
ceeding in  its  nature  criminal,  as  for  the  removal  of  an  officer,15 
or  an  application  for  a  mandamus.16  "  This  court,"  said  Lord 
Hardwicke,  "  has  no  jurisdiction  to  stay  proceedings  on  a  man- 
damus;  nor  to  an  indictment;  nor  to  an  information;  nor  to  a 
writ  of  prohibition,  that  I  know  of."17  Judge  Billings  recently 
said :  "  The  extent  to  which  such  a  bill  will  lie  is  well  defined. 
It  is  when  the  parties  sought  to  be  enjoined  have,  as  plaintiffs, 
submitted  themselves  to  the  court  by  a  bill  in  equity  as  to  the 
matters  affected  by  or  involved  in  the  criminal  procedure.  In 
such  case  the  court  will  by  a  decree  affecting  the  parties  so  situ- 
ated personally  enjoin."  18  It  was  at  first  held  that  a  court  had 
no  power  to  restrain  a  defendant  from  suing  in  a  foreign  court ; 19 
but  it  seems  now  to  be  established  that  it  can  do  so,20  though 

8  Murray  v.  Overstoltz,  8  Fed.  R.  110.  Fed  R.  670  ;  s.  c.  20  Fed.  R.  567  ;  In  re 

fl  Cropper  v.  Coburn,  2  Curt.  465.  Sawyer,  124  U.  S.  200. 

l°  Linton  v.  Mosgrove,  14  Fed.  R.  543.  15  In  re  Sawyer,  124  U.  S.  200. 

«  In  re  Long  Island,   N.   S.   P.   &  F.  1G  Lord  Montague  v.  Dudman,  2  Ves. 

Transportation  Co.,  5  Fed.  R.  599.     See  Sen.  396,  398. 

Providence    &  N.  Y.    S.  S.   Co.   v.  Hill  "  Lord  Montague  v.  Dudman,  2  Ves. 

Manuf.  Co.,  109  U.  S.  578, -600.  Sen.  306,  398. 

12  Smith  v.  Schwed,  6  Fed.  R.  455;  18  Spink  t>.  Francis,  19  Fed.  R.  670,  671 ; 
Perry  v.  Sliarpe,  8  Fed.  R.  15.  But  see  s.  c.  20  Fed.  R.  567,  569.  So  held  in 
Lawrence  v.  Morgan's  R.  R.  &  S.  S.  Co.,  Mayor  of  York  v.  Pilkington,  2  Atk.  302. 
121  U.  S.  634.  19  Love  v.  Baker,  1   Ch.  Cas.  67,  de- 

13  Diggs  v.  Wolcott,  4  Cranch,  179.  cided   by  Lord    Clarendon  ;  but  the  re- 

14  Lord  Montague  v.  Dudman,  2  Ves.  porter  added,  "  sed  qucere,  for  all  the  bar 
Sen.  396  ;  Attorney-General  v.  Cleaver,  was  of  another  opinion." 

18  Ves.  211,  '220;  Saull  v.  Browne,  L.  R.  21  Bunbury  v.  Bunbury,  1  Beav.  318; 
10   Ch.  App.  64;    Spink  v.  Francis,  19     Dehon  v.  Foster,  4  Allen  (Mass.),  545; 


§  212.]      INJUNCTIONS   TO   RESTEAIN  ALIENATION  OF  PROPERTY.     305 

such  a  power  is  exercised  with  great  caution.21  It  has  been  held 
that,  in  a  suit  by  the  United  States  to  vacate  a  patent  for  an 
invention,  a  preliminary  injunction  will  not  be  granted  to  restrain 
the  prosecution  by  the  defendant  of  suits  for  the  infringement  of 
the  patent.22  Where  a  plaintiff  is  bringing  suits  upon  the  same 
patent  against  different  defendants,  who  rely  upon  the  same 
defenses,  the  court  may  stay  proceedings  in  all  but  one  till  the 
validity  of  the  patent  has  been  finally  determined  in  the  excepted 
case.23  But  where  some  of  the  defendants  set  up  different 
defenses  it  was  held  that  the  court  "  could  not  restrain  in  part 
and  permit  in  part  the  prosecution  of  the  cases.  It  would  have 
no  right  to  issue  an  injunction  which  should  [sic]  have  the  effect 
to  split  up  the  cases,  enjoining  their  prosecution  as  to  some 
branches  of  the  controversy  and  permitting  it  as  to  the  others."24 
An  injunction  order  providing  "  that  all  suits  and  proceedings 
on  the  part  of"  certain  persons  "against  the  said  bankrupt,  to 
collect  the  debt  set  forth,  be  and  the  same  are  hereby  stayed  to 
await  the  determination  of  the  Court  in  bankruptcy  on  the  ques- 
tion of  the  discharge  therein,"  was  held  violated  by  those  who, 
after  discontinuing  a  suit  then  pending,  subsequently  instituted 
another  to  recover  the  same  claim,  with  new  allegations  charging 
fraud.25 

§  212.  Injunctions  to  restrain  the  Alienation  of  Property.  —  In- 
j unctions  may  be  obtained  to  prevent  the  alienation  of  property 
"  where  it  would  work  irremediable  or  gross  injustice."  *  An 
injunction  will,  therefore,  issue  to  prevent  the  transfer  of  notes, 
bills  of  exchange,  and  other  documents,  whether  negotiable  or 
not,  whose  possession  gives  their  holder  a  presumptive  title  to 
the  rights  which  they  evidence,2  when  obtained  from  the  plain- 
tiff by  the  defendant  through  duress,  fraud,  or  other  iniquity ;  or 
when  forged;3  or  when,  though  the  holder  may  have  properly 

En  gel  v.  Scheuerman,  40  Ga.  206;  Massie        25  In  the  Matter  of  Schwarz,  14  Fed. 

v.  Watts,  6  Craneh,  148.  R.  787. 

21  Vail  v.  Knapp,  49  Barb.  (N.  Y),  299 ;         §  212.    i  Story's  Eq.  Jur.  §  953. 
Story's  Eq.  Jnr.  §§  899,  900.  2  Osborn   v.  United   States    Bank,    9 

22  United  States  v.  Colgate,  21  Fed.  R.  Wheat.  738,  845;  Lloyd  v.  Gnrdon,  2 
318.  Swanst.  180 ;  Hood  v.  Aston,  1  Russ.  412 ; 

23  Birdsell  v.  Hagerstown  Ag.  Imp.  Lord  Clied worth  v.  Edwards,  8  Ves. 
Man.  Co.,  1  Hughes,  64  ;  Rumford  Chein-  46  ;  Reeve  v.  Parkins,  2  J.  &  W.  390  ; 
ical  Works  v.  Hecker,  5  Off.  Gaz.  644 ;  Schermerhorn  v.  L'Espenasse,  2  Dall. 
Allis  v.  Stowell,  16  Fed.  R.  783.  360. 

m  Dyer,  J.  in  Allis  v.  Stowell,  16  Fed.  8  Esdaile  v.  LaNauze,  1  Y.  &  C.  394. 

R.  783,  700. 

20 


306  INJUNCTIONS.  [CHAP.  XVI. 

obtained  them,  he  threatens  or  is  about  to  use  them  in  an  in- 
equitable manner.4  An  injunction  may  be  granted  to  prevent  a 
party  from  making  vexatious  alienations  of  land  pending  a  suit 
concerning  the  title  to  the  same.5  For  it  was  said  that,  otherwise, 
the  plaintiff  might  be  put  to  the  expense  of  making  each  vendee 
or  grantor  a  party  to  the  proceedings ;  and,  at  all  events,  his 
title,  if  he  prevails  in  the  suit,  may  be  embarrassed  by  the  new 
outstanding  claims  of  title  under  the  threatened  transfer.6  The 
sale  or  transfer,7  or  removal  beyond  the  jurisdiction  of  the  court8 
of  a  chattel,  the  loss  of  which  could  not  be  compensated  in 
damages,  may  also  be  thus  restrained  ;  and  so  has  been  the  sale 
of  other  personal  property.9  Injunctions  have  also  been  granted 
at  the  suit  of  a  part-owner  to  prevent  the  sailing  of  a  ship  until 
his  share  could  be  ascertained,  and  a  bond  given  to  secure  him 
against  loss  upon  the  voyage  ; 10  to  prevent  the  removal  of  timber 
wrongfully  cut  down  ;  n  and  to  prevent  the  trustees  of  a  dissent- 
ing chapel  from  appointing  as  a  minister  a  person  not  duly 
qualified  according  to  its  constitution.12 

§  213.  Injunctions  to  prevent  Waste.  —  An  injunction  will  issue 
to  prevent  waste,  whether  legal  or  purely  equitable.1  Waste  is 
a  permanent  injury  to  real  estate  committed  by  a  person  in  pos- 
session with  a  limited  interest  in  the  same.  Legal  waste  consists 
of  such  acts  as  would  be  considered  waste  at  common  law ; 
equitable  waste,  of  such  acts  as  at  law  would  not,  under  the 
circumstances  of  the  case,  be  considered  waste,  but  which  are 
so  esteemed  in  the  view  of  a  court  of  equity,  from  their  manifest 
injury  to  the  inheritance,  though  not  inconsistent  with  the  legal 
rights  of  the  party  committing  them.2  Such  is  wilful  and  wanton 
injury  to  land  committed  by  a  tenant  without  impeachment  for 

4  Anon.,  6  Madd.  10.  v.  Craig,  2  Mer.  137.    But  see  Wilkinson 

5  Daly  v.  Kelly,  4  Dow,  417 ;  Echliff     v.  Dobbie,  12  Blatchf .  298. 

v.  Baldwin,  16  Ves.  267.     But  see  Turner  n  Bradley  v.  Reed,  2  Pittsb.  (Pa.)  519 ; 

v.  Wight,  4  Beav.  40.  Anon.,  1  Ves  Jr.  93;   Daniell's  Ch.  Pr. 

6  Daniell's  Ch.  Pr.  (2d  Am.ed.)  1873.  (2d  Am.  ed.)  1874. 

7  Gibson  v.  Lewis,  11  Phila.  (Pa.)  476;  12  Milligan  v.  Mitchell,  1  M.  &  K.  446. 
Lady  Arundell  v.  Phipps,  10  Ves.  139;  §213.  1  Garth  v.  Cotton,  1  Dickens, 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1872.  183;  Thruston  v.  Mustin,  3  Cranch  C.  C. 

8  Green  v.  Hanberry,  2  Brock.  403;  335;  United  States  v.  Gear,  3  How.  120; 
Haly  v.  Goodson,  2  Mer.  77 ;  Christie  v.  Fletcher  i;.  New  Orleans  N.  E.  R.  R.  Co., 
Craig,  2  Mer.  137.  20  Fed.  R.  345;  Lanier  v.  Alison,  31  Fed. 

9  Rateau  v.  Bernard,  3  Blatchf.  244 ;  R.  100 ;  Bispham's  Eq.  §§  429-432. 
Higgins  v.  Jenks,  3  Ware,  17.  2  Daniell's  Ch  Pr.  (2d  Am.  ed.)  1854, 

W  Haly  v.  Goodson,  2  Mer.  77  ;  Christie     1855. 


§  214]      INJUNCTIONS  TO  PREVENT  CONTINUANCE   OF  NUISANCE.     307 

waste.3  The  interference  of  equity  in  cases  of  this  kind  is  justified, 
not  only  by  the  fear  of  irremediable  injury,  but  also  because  the 
tenant  for  life  or  years  is  considered  to  stand  in  a  trust  relation 
toward  the  remainder-man.  So  anxious  is  equity  to  prevent 
waste,  that  it  has  sustained  a  bill  praying  such  an  injunction 
filed  in  behalf  of  a  child  in  its  mother's  womb.4  An  injunction 
will  be  granted  to  restrain  acts  in  the  nature  of  waste  committed 
by  one  in  possession  of  land  the  title  to  which  is  in  litigation.5 

§  214.  Injunctions  to  prevent  the  Continuance  of  a  Nuisance.  — 
The  interference  of  equity  to  enjoin  the  continuance  of  a  nui- 
sance is  not  only  due  to  the  fact  that  the  acts  complained  of 
produce  irreparable  injury,  but  also  is  allowed  to  prevent  the 
multiplicity  of  suits  that  would  be  necessary  were  the  plaintiff 
confined  to  his  remedy  at  common  law.1  Nuisances  are  of  two 
kinds :  those  which  are  injurious  to  the  public  at  large,  and 
those  which  are  injurious  to  the  rights  and  interests  of  private 
persons.2  The  use  of  this  remedy  to  suppress  a  public  nuisance 
is  of  very  ancient  date.3  It  was  applicable  in  England  both  to 
nuisances  strictly  so  called  and  to  purprestures.  "  By  purpres- 
ture is  meant,  in  its  present  acceptation,  an  incroachment  upon 
the  Crown,  either  upon  part  of  the  demesne  lands,  or  upon  the 
high  roads,  rivers,  ports,  or  streets ;  and  the  difference  between 
purprestures  and  nuisances  consists  in  this,  that  where  the  jus 
privatum  of  the  Crown  is  invaded  it  is  a  purpresture,  but  where 
the  jus  publicum  is  violated  it  is  a  nuisance."  In  cases  of  pur- 
presture the  remedy  is  either  by  information  for  an  intrusion  at 
the  common  law,  or  by  information  in  equity  at  the  suit  of  the 
attorney-general.  The  consequence  of  a  judgment  at  common 
law  being  the  abatement  of  the  erection  or  grievance  com- 
plained of,  whether  it  is  or  is  not  a  nuisance,  whilst  upon  an 
information  in  equity,  where  the  trespass  does  not  produce  any 
public  injury  the  court  may  direct  an  inquiry  whether  it  is 
most  beneficial  to  the  Crown  to  abate  the  purpresture,  or  to 
suffer  the  erection  to  remain  and  be  assessed  as  a  part  of  the 

3  Vane  v.  Lord  Barnard,  2  Vern.  738;  5  United  States  v.  Parrott,  1  McAlI. 
Gartli  v.  Sir  John  Hind  Cotton,  1  Dickens,     271. 

183  ;  s.  c.   1    White  &  Tudor's  Leading  §  214.    1  Fishmongers'  Co.  v.  East  In- 

Cases  in  Equity  (6th  ed.),  806  ;  Bispham's  dia  Co.,  1  Dickens,  163  ;  Attorney-General 

Eq.  §  434.  v.  Nichol,  16  Ves.  338,  343. 

4  Musgrave  v.  Parry,  2  Vern.  710;  *  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1857. 
Lutterel'a  Case,  cited  Prec.  Ch.  50;  8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1857. 
Scatterwood  v.  Edge,  1  Salk.  229. 


308  INJUNCTIONS.  [CHAP.  XVI. 

"legal  revenue."4  Cases  of  public  nuisance  may  be  enjoined  at 
the  suit  of  the  attorney-general,  who  in  England  sues  by  infor- 
mation.5 A  public  nuisance  may  also  be  restrained  at  the  suit 
of  any  who  have  suffered  by  it  special  damage  distinct  from 
that  which  it  causes  to  the  public  at  large  ;  but  not  otherwise.6 
A  bill,  for  example,  may  be  filed  by  a  State  to  enjoin  the  erec- 
tion of  a  bridge  across  a  navigable  stream  which  will  injure  her 
commerce;7  but  not  by  a  city  for  a  similar  reason,8  unless 
its  property,  for  example  a  wharf,  is  thereby  injured.9  The 
United  States  may  obtain  an  injunction  against  a  nuisance  which 
threatens  injur}''  to  works  in  aid  of  commerce  which  are  con- 
structed under  the  authority  of  the  national  government.10  A 
private  nuisance  is  an  act,  or  series  of  acts,  unaccompanied  by 
an  act  of  trespass,  which  cause  a  substantial  injury  to  a  person's 
property,  health,  or  comfort.  It  will  always  be  restrained  when 
it  would  otherwise  cause  an  irreparable  injury  or  a  multiplicity 
of  suits.11  "  It  used  to  be  thought,  that  if  a  man  knew  there 
was  a  nuisance,  and  went  and  lived  near  it,  he  could  not  recover, 
because,  it  was  said,  it  is  he  that  goes  to  the  nuisance,  and  not 
the  nuisance  to  him.  This,  however,  is  not  the  law  now." 12 
Formerly  an  injunction  was  rarely  issued  to  restrain  a  nuisance 
until  the  plaintiff's  right  of  action  had  been  established  at  law  ; 
"  but  now  a  suit  at  law  is  no  longer  a  necessary  preliminary,  and 
the  right  to  an  injunction,  in  a  proper  case,  in  England  and  most 
of  the  States,  is  just  as  fixed  and  certain  as  the  right  to  any  other 
provisional  remedy."  13      Formerly,  it  was  a  fundamental  objec- 

4  Daniell's  Ch.  Pr.  (2d  Am.  ed  )  1857,  10  United  States  v.  Mississippi  &  R.  R. 

citing  Attorney-General  v.  Richards,   2  Boom  Co.,  3  Fed.  R.  548 ;  8.  c.  1   Mc- 

Anst.  603  ;  Attorney-General  v.  Johnson,  Crary,  601. 

2  J.  Wil.  87.     See  also  United  States  v.  n  Osburne  v.  Barter  &  Goddins,  anno 

Gear,  3  How.  120.  26  Eliz.,  Choyce  Cases  in  Chancery  (ed. 

6  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1858.  of  1870),  p.  176  ;  Parker  r.  Winnipiseo- 
«  Baines  v.  Baker,  Amb.  158;  Missis-  gee  Lake  C.  &  W.  Co.,  2  Black,  545; 

sippi  &  Missouri  R.  R.  Co.  v.  Ward,  2  Woodruff    v.    North    Bloomfield    Gravel 

Black,  485 ;   Georgetown  v.  Alexandria  Mining  Co.,  18  Fed.  R.  753 ;  St.  Helen's 

Canal  Co.,  12  Pet.  91;  Irwin  v.  Dixion,  9  Smelting  Co.  ?;.  Tipping,  11   H.  L.   C. 

How.  10 ;   Spooner  v.  McConnell,  1  Mc-  642. 

Lean,  337 ;  Works  v.  Junction  R.  R.,  5        12  Byles,  J.,  in  Hole  v.  Barlow,  4  C.  B. 

McLean,  425.  n.  s.  334.     See  St.  Helen's  Smelting  Co. 

7  Pennsylvania  v.  "Wheeling  &  Belmont  v.   Tipping,  11  H.  L.  C.  642;  Campbell 
Bridge  Co.,  13  How.  518.  v.  Seaman,  63  N.  Y.  568. 

8  Georgetown  v.  Alexandria  Canal  Co.,        13  Judge  Earl  in  Campbell  v.  Seaman, 
12  Pet.  91.  63  N.  Y.  568,  582.     See,  however,  Irwin  v. 

9  St.  Louis  v.  Knapp  Co.,  104  U.  S.  Dixion,  9  How.  10;  Murtagh  v.  Philadel- 
658.  phia,  1  Weekly  Notes  of  Cases,  37. 


§  215.]        INJUNCTIONS  TO  RESTRAIN  TRESPASS.  309 

tion  to  an  order  for  an  injunction  to  restrain  a  nuisance  to  land 
when  the  legal  title  was  disputed,  that  the  order  contained 
no  provision  for  putting  the  question  in  a  course  of  legal  in- 
vestigation.14 

§  215.  Injunctions  to  restrain  Trespass.  —  Injunctions  to  restrain 
trespass  are  of  quite  recent  origin.  The  first  that  is  to  be  found 
in  the  books  was  granted  by  Lord  Thurlow.1  They  are  only 
granted  when  the  trespass  is  destructive  or  continuous.  The 
rule  upon  the  subject  has  been  thus  stated  by  Vice-Chancellor 
Kindersley  :  "  Where,  therefore,  the  plaintiff  is  in  possession  and 
the  person  doing  the  acts  complained  of  is  an  utter  stranger, 
not  claiming  under  color  of  right,  the  tendency  of  the  court 
is  not  to  grant  an  injunction,  unless  there  are  special  circum- 
stances, but  to  leave  the  plaintiff  to  his  remedy  at  law ;  though, 
where  the  acts  tend  to  the  destruction  of  the  estate,  the  court 
will  grant  it.2  But  where  the  party  in  possession  seeks  to  re- 
strain one  who  claims  by  adverse  title,  then  the  tendency  will 
be  to  grant  the  injunction,  at  least  where  the  acts  done  either 
did  or  might  tend  to  the  destruction  of  the  estate."3  The 
destruction  of  credit  by  an  illegal  seizure  of  one's  stock  in  trade,4 
and  the  injury  to  a  farm  done  by  the  illegal  taking  of  all  the 
stock  and  tools  upon  it,  have  been  held  instances  of  such  irrep- 
arable injury.5  An  attempt  by  a  railroad  company  to  build  its 
road  upon  private  property  without  payment  of  compensation 
may  be  thus  prevented.6  It  is  not  certain,  whether  the  fact  that 
a  person  who  threatens  to  commit  a  wrong  is  insolvent  and  unable 
to  pay  any  damages  which  could  be  recovered  at  law,  is  in  itself 
a  sufficient  ground  for  the  interference  of  equity  by  injunction  ; 
but  the  weight  of  authority  seems  to  hold  that  it  is.7     It  was 

"  Harman   v.  Jones,  Cr.  &  Ph.  299 ;  s.  c.  4  Fed.  R.  298.      See  also  Missouri, 

Sanxter  v.  Foster,  Cr.  &  Ph.  302.  K.  &  T.  Ry.  Co.  v.  Texas  &  St.  Louis  Ry. 

§  215.   1  Flamang's    Case,    cited    by  Co.,  10  Fed.  R.  407. 
Lord   Eldon  iu  Hanson   v.  Gardiner,   7  7  Connolly  v.  Belt,  5  Cranch  C.  C.  405  ; 

Ves.  305.  M'Elroy  v.  Kansas  City,  21  Fed.  R.  257, 

2  See  Jerome  v.  Ross,  7  J.  Ch.  (N.  Y.)  262  ;  Agar  v.  Regent's  Canal  Co.,  cited 

315;  Troy  &  B.  R.  R.  Co.  v.  Boston,  H.  in  1  Swanst.  250;  Musselman  v.  Marquis, 

T.  &  W.  Ry.  Co.,  80  N.  Y.    107;    Van  1  Bush  (Ky.),  463;  Hicks  v.  Compton,  18 

Norden  v.  Morton,  99  U.  S.  378.  Cal.  206 ;  Britton  v.  Hill,  12  C.  E.  Green 

8  Lowndes  v.  Bettle,  33  L.  J.  Ch.  461.  (N.  J),  389 ;  Lloyd  v.  Heath,  Busbee's  Eq. 

4  Watson  v.  Sutherland,  5  Wall.  74;  (N.  C.)39;  Gause  i\  Perkins,  3  Jones  Eq. 
Cropper  v.  Coburn,  2  Curt.  465.  (N.  C.)  177;  Chesapeake  &  Ohio  R.  R. 

5  Breeden  v.  Lee,  2  Hughes,  484.  Co.  v.  Patton,  5  W.  Va.  234  ;  Bispham'a 

6  Northern  Pacific  R.  R.  Co.  v.  Bur-  Eq.  §  436 ;  Cam  v.  Met.  El.  Ry.  Co.,  46 
lington  &  M.  R.  R.  Co.,  2  McCrary,  203 ;  N.  Y.  Super.  Ct.  138.     Contra,  Heilman  v. 


310  INJUNCTIONS.  (CHAP.  XVI. 

held,  where  there  was  a  dispute  as  to  the  possession  and  as  to 
right  to  the  possession  of  a  railroad  track,  that  the  court  would 
not  interfere  by  injunction  to  assist  in  "  a  scramble  for  posses- 
sion." 8  A  number  of  cases  decided  in  the  courts  of  different  States 
hold  that  an  injunction  cannot  be  obtained  to  restrain  an  illegal 
arrest ;  since  it  is  said  that  the  writ  of  habeas  corpus  followed  by 
an  action  for  damages  always  affords  an  adequate  remedy  for 
any  injury  resulting  therefrom;9  but  if  the  result  of  the  arrests 
would  be  an  irreparable  injury  to  the  business  of  the  complainant, 
an  injunction  might  perhaps  be  issued.10 

§  216.  Injunctions  to  restrain  the  Infringement  of  Patents.  — 
Injunctions  to  restrain  the  infringement  of  patents  and  copy- 
rights are  of  ancient  use  in  equity.  They  are  founded  upon  both 
the  irreparable  injury  that  would  otherwise  be  caused  to  the  com- 
plainant, and  the  desire  of  the  court  to  prevent  a  multiplicity  of 
suits.1  This  inherent  power  of  the  courts  is  confirmed  in  the  United 
States  by  statute.  The  provision  of  the  Revised  Statutes  author- 
izing injunctions  to  restrain  the  infringement  of  patents  is  as 
follows :  "  The  several  courts  vested  with  jurisdiction  of  cases 
arising  under  the  patent  laws  shall  have  power  to  grant  injunc- 
tions according  to  the  course  and  principles  of  courts  of  equity, 
to  prevent  the  violation  of  any  right  secured  by  a  patent  upon 
such  terms  as  the  court  may  deem  reasonable ;  and  upon  a  decree 
being  rendered  in  any  such  case  for  an  infringement,  the  com- 
plainant shall  be  entitled  to  recover  in  addition  to  the  profits  to 
be  accounted  for  by  the  defendant,  the  damages  the  complainant 
has  sustained  thereby  ;  and  the  court  shall  assess  the  same  or 
cause  the  same  to  be  assessed  under  its  direction.  And  the 
court  shall  have  the  same  power  to  increase  such  damages,  in  its 
discretion,  as  is  given  to  increase  damages  found  by  verdicts  in 

The  Union  Canal  Co.,  37  Pa.  St.  100  ;  75  N.  Y.  362.    See  also  Yick  Wo  v.  Crow- 
Thompson    v.    Williams,    1    Jones    Eq.  ley,  26  Fed.  Rep.  207. 
(N.  C.)  176  ;   Nessle  v.  Reese,  19  Abb.         10  Louisiana  State  Lottery  Co.  v.  Fitz- 
Pr.  (N.  Y.)  240;    High    on  Injunctions,  patrick,  3  Woods,  222  ;  Dinsmore  v.  New 
§  18.  York  Board  of  Police,  12  Abb.  N.  Cas. 

8  St.  Louis,  K.  C.  &  C.  Ry.  Co.  v.  (N.  Y.)  436 ;  Manhattan  Iron  Works  Co. 
Dewees,  23  Fed.  R.  691.  v.  French,  12  Abb.  N.  Cas.  (N.  Y.)  446. 

9  Cohen  v.  Commissioners  of  Golds-  §  216.  J  Eden  on  Injunctions,  chs.  xii. 
boro,  77  N.  C.  2;  Burnett  v.  Craig,  30  and  xiii. ;  Daniell's  Ch.  Pr.  (5th  Am.  ed.) 
Ala.  135;  Burch  v.  Cavanaugh,  12  Abb.  1642-1648;  Hogg  v.  Kirby,  8  Ves.  215; 
Pr.  n.  s.  (N.  Y.)  410;   Davis  v.  American  Wilkins  v.  Aikin,  17  Ves.  422. 

Society  for  Prevention  of  Cruelty  to  An- 
imals, 6  Daly  (N.  Y.),  81 ;  s.  c.  on  appeal, 


§  216.]    TO  RESTRAIN  THE  INFRINGEMENT  OF  PATENTS.       311 

actions  in  the  nature  of  actions  of  trespass  upon    the    casa."2 
It  seems  to  have  been  formerly  the  opinion  that  courts  of  equity 
would  not  interfere  to  protect  a  patent  right  by  injunction,  until 
the  right  had  been  established  at  law ;  but  since  Lord  Eldon's 
time  their  jurisdiction  to   thus  interfere,   when   the   title   of  a 
complainant  is  established   by  the   preponderance  of  evidence, 
has   been   undisputed.3      In  a  recent  case   Judge   Lowell  said: 
"The  principles  which  govern   courts  in  granting  or  refusing 
preliminary  injunctions  in  patent  cases  are  well  established.     As 
a  general  rule,  if  the  plaintiff  has  made  out  a  clear  title,  and  the 
question    of   infringement  presents  no  difficulty,   an  injunction 
will  be  granted.     The  hearing  is  had  upon  ex  parte  affidavits, 
and  if  the  questions  to  be  decided  are  difficult  and  complicated, 
especially  if  they  involve  disputed  facts  which  have  never  been 
passed  upon  by  a  court  or  jury,  then,  although  the  court  may 
be  inclined  to  think  the   complainant  is  right,  yet  it  will  not 
interfere  at  this  stage  of  the  cause,  whether  the  questions  relate 
to  title  or  to  infringement.     And  even  where  the  title  is  clear, 
yet  if  there  are   peculiar  circumstances  which   show  that   the 
defendant's  interests  would  be  injuriously  affected  by  an  injunc- 
tion, while  those  of  the  plaintiff  would  not  be   so  affected  by 
refusing  it,  it  may  be  refused.     Such  were  the  cases  of  Howe  v. 
Morton,  Fisher's  Pat.  Cases,  vol.  i.  586,  decided  by  Judge  Sprague, 
and    the    Burring-machine    case,    Morris   v.   Lowell   M'f'g   Co., 
Fisher's  Pat.  Cases,  vol.  iii.  67,  which  came  before  me  ;  in  both 
of  which  the  patent  was  about  to  expire,  and  the  defendant's 
business  would   be  very  seriously  interfered   with  for  the  few 
weeks  that  the  exclusive  right  would  remain  in  force,  only  to  be 
resumed  again  immediately  afterward  at  great  expense  and  loss. 
There  is,  therefore,  always  an  element  of  discretion  entering  into 
the  consideration  of  this  question,  and  all  that  a  complainant  is 
entitled  to  is  the  best  judgment  of  the  court  upon  a  question  of 
judicial  discretion,  and  not  absolutely  to  an  injunction  on  any 
given  state  of  facts.  .  .  .     These  cases  being  tried,  as   I  have 
said,  on  ex  parte  evidence,  must  be  decided  on  broad  views  of 
the  rights  of  the  parties.     It  is  usual  to  present  proof,  either 
of  long  and   general   acquiescence    in   the    plaintiff's   exclusive 

2  U.  S.  R.  S.  §  4921.     See  supra,  §§  77,  Thompson,    3    Meriv.    G22 ;    Pierpont  v. 

145.  Fowle,  2  W.  &  M.  23;  Motte  v.  Bennett, 

8  Universities  of  Oxford   and    Cam-  2  Fisher,  642;  Kerr  on  Injunctions,  272. 
bridge  v.  Richardson,  6  Ves.  689  ;  Hill  v. 


312  INJUNCTIONS.  [CHAP.  XVI. 

rights,  or  of  their  having  been  sustained  by  the  courts.  The 
ground  on  which  acquiescence  is  important  is  that  it  shows 
exclusive  possession,  which,  if  it  has  been  of  long  standing,  open 
and  notorious,  is  a  clear  foundation  of  a  presumption  of  title. 
It  is  not  always,  however,  so  satisfactory  as  positive  adjudica- 
tions, because  it  may  have  arisen  from  the  comparatively  small 
commercial  value  of  the  invention,  and  in  that  case  shows  only 
that  no  one  has  thought  it  worth  infringing." 4  If  previous 
adjudications  in  the  same  or  other  Circuit  Courts  have  established 
the  validity  of  the  plaintiff's  patent,  a  preliminary  injunction  will 
be  granted  him  almost  as  of  course  in  a  subsequent  suit,  to  prevent 
the  infringement  of  the  same  by  a  person  not  a  party  to  those 
suits,5  unless  the  latter  can  produce  new  evidence,6  to  show 
that  such  judgments  were  obtained  by  consent,  collusion,  or 
fraud.7  In  such  cases  the  courts  will  usually  examine  only  the 
question  of  the  infringement.8  But  it  may,  and  before  granting' 
a  perpetual  injunction  often  does,  reconsider  the  whole,  ques- 
tion.9 Otherwise,  however,  when  the  patent  is  of  recent  issue, 
and  its  validity  is  denied  by  sufficient  evidence  to  raise  a  reason- 
able doubt  in  the  mind  of  the  judge  as  to  a  question  either  of 
fact  or  of  law  ;  a  preliminary  injunction  will  usually  be  refused  ;10 
although  now  that,  in  the  Federal  courts,  the  same  judges  sit 
both  at  law  and  in  equity,  and  when  sitting  in  equity  have  the 
power  to  submit  a  disputed  question  of  fact  to  a  jury,  such  a 

4  Potter  v.  Whitney,  1  Lowell,  87,  88,  15  Blatchf.  315.  But  see  Orr  v.  Little- 
89.     See  also  Hill  v.  Thompson,  3  Meriv.     field,  1  W.  &  M.  13. 

622 ;  Washburn  &  Moen   Manuf.   Co.  v.  8  Robertson    v.   Hill,    6   Fisher,  4G5  ; 

Haish,  4  Fed.  R.  900;  Foster  v.  Moore,  Odorless  Excavating  Co.  v.  Lauman,  12 

1  Curt.  279  ;  McKay  v.  Dibert,  5  Fed.  R.  Fed.  R.  788. 

687.  9  Many  v.  Sizer,  1  Fisher  Pat.  Cas.  31 ; 

5  Newall  v.  Wilson,  2  DeG.,  M.  &  G.  Day  v.  Hartshorn,  3  Fisher,  32 ;  Parker 
280 ;  Orr  v.  Littlefield,  1  W.  &  M.  13 ;  v.  Sears,  1  Fisher  Pat.  Cas.  93 ;  Poppen- 
Thayer  v.  Wales,  9  Blatchf.  170;  s.  c.  husen  v.  Falke.  4  Blatchf.  493;  Sargent 
5  Fisher,  130  ;  Kirby  Bung  Manuf.  Co.  v.  Manuf.  Co.  v.  Woodruff,  5  Biss.  444. 
White,  1  Fed.  R.  004 ;  High  on  Injunc-  10  Parker  v.  Sears,  1  Fisher  Pat.  Cas. 
tions,  §§  953-959;  Kerr  on  Injunctions,  93;  American  Nicolson  Pavement  Co.  v. 
273.  But  see  Many  v.  Sizer,  1  Fisher  Pat.  City  of  Elizabeth,  4  Fisher,  189;  Dodge 
Cas.  31.     .  v.  Card,  2  Fisher,  116  ;  Sullivan  v.  Red- 

6  Page  v.  nolmes  Burglar  Alarm  Tel.  field,  1  Paine,  441  ;  Winans  v.  Eaton,  1 
Co.,  2  Fed.  R.  330  ;  s.  c.  18  Blatchf.  Fisher  Pat.  Cas.  181 ;  Mo  wry  v.  Grand 
1 18.  Street  &  N.  R.  Co.,  10  Blatchf.  89 ;  s.  c.  5 

7  American   Nicolson   Pavement   Co.     Fisher,  586;  Smith  v.  Cummings,  1  Fisher 
♦  v.  City  of  Elizabeth,  4  Fisher,  189  ;  Page     Pat.   Cas.    152  ;    McGuire   v.   Eames,   15 

t\   H.  B.   A.   Tel.    Co,   2   Fed.  R.  330;     Blatchf.  312;  Kirby  Bung  Manuf.  Co.  v. 
American  Middlings  Purifier  Co.  v.  Vail,     White,  1  Fed.  R.  604. 


§  216.]         TO   RESTRAIN    THE   INFRINGEMENT   OF   PATENTS.  313 

court  usually  determines  the  whole  question  upon  its  final  de- 
cree, without  adopting  the  circuitous  method  of  first  directing 
a  trial  at  law.11  Formerly  the  custom  was,  when  any  doubt 
remained  in  the  mind  of  the  court  after  the  final  hearing,  to  deny 
the  complainant  a  perpetual  injunction  at  that  time ;  but  to 
direct  that  the  cause  "  stand  over  a  reasonable  time,  for  the 
bringing  of  a  suit  at  law  against  the  defendants  for  an  infringe- 
ment; and,  if  such  a  suit  is  brought,  until  a  sufficient  time  for 
the  trial  thereof  has  elapsed.  And  if,  in  such  suit,  there  shall  be 
final  judgment  for  the  plaintiffs,  they  will  be  entitled  to  a  decree 
for  injunction  and  account,  as  prayed  for  in  the  bill ;  and  if,  in 
such  suit,  there  shall  be  final  judgment  for  the  defendants,  the 
bill  will  be  dismissed  with  costs  ;  and  so,  also,  it  will  be  dis- 
missed with  costs  on  an  application  of  the  defendants,  if  such 
suit  is  not  brought  within  a  reasonable  time,  and  prosecuted  with 
reasonable  diligence."  12  An  ex  parte  application  for  an  injunc- 
tion to  restrain  the  infringement  of  a  patent  should,  it  seems,  be 
supported  by  an  affidavit,  or  an  allegation  in  a  bill  verified  by 
affidavit  of  the  plaintiff,  stating  that  he  believes  that  the  person 
to  whom  the  patent  was  issued  was  the  original  inventor  thereof, 
or  that  the  invention  was  new,  or  had  not  been  introduced  into 
public  use  in  the  United  States  for  more  than  two  years  prior  to 
the  application  upon  which  the  patent  was  issued.13  After  the 
expiration  of  a  patent  an  injunction  may  issue  to  prevent  the  use 
of  a  machine  made  while  the  patent  was  in  force;  and  an  injunc- 
tion previously  issued  will  remain  in  force  so  as  still  to  forbid 
such  a  use.14  But  a  bill  praying  for  such  an  injunction  must 
allege  either  that  the  defendant  is  using  machines  manufactured 
during  the  term  of  the  patent  and  in  violation  of  it,  or  that  the 
plaintiff  has  cause  to  fear,  such  a  use.15  An  injunction  against 
the  manufacture  or  sale  of  articles  in  violation  of  a  patent  right 
is  violated  by  their  sale  or  manufacture  within  the  United  States, 
but  beyond  the  jurisdiction  of  the  court.16  "  In  deciding  whether 
a  given  complainant  has  made  out  a  prima  facie  case  for  a  pre- 

11  See  Pierpont  v.  Fowle,  2  W.  &  M.  Sullivan  v.  Recjfiehl,  1  Paine,  441  ;  U.  S. 
23,  36.  R.  S.  §§  4886,  4887. 

12  Judge  Hall  in  Muscan  Hair  Manu-  14  American  Diamond  Pock  Boring  Co. 
facturing  Co.  v.   American   Hair  Manu-  v.  Rutland  Marble  Co  ,  2  Fed.  R.  356. 
facturing   Co.,   1   Fisher    Patent    Cases,  i6  American  Diamond  Rock  Boring  Co. 
320,  325.  v.  Rutland  Marble  Co.,  2  Fed.  R.  355. 

13  Hill    v.   Thompson,   3    Meriv.  622;  10  Macaulay  v.  White  Sewing  Machine 
Sturz  v.  De  La  Rue,  5  Russ.  322,  329;  Co.,  9  Fed.  R.  698. 


314  INJUNCTIONS.  [CHAP.  XVI. 

liminary  injunction  to  restrain  infringement  of  a  patent,  the  judge 
is  guided  by  the  presence  or  absence  of  two  presumptions  and 
one  certainty.  Those  presumptions  relate  to  the  validity  of  the 
patent  and  to  the  defendant's  infringement  thereof,  and  that  cer- 
tainty relates  to  the  complainant's  title  thereto.  If  that  certainty 
or  either  of  those  presumptions  are  absent  in  a  given  case,  no 
preliminary  injunction  will  be  granted;  but  such  a  writ  will  not 
be  granted  where  they  are  all  present,  unless  the  defendant  inter- 
poses some  good  defence  to  the  motion  or  unless  the  court  takes 
a  bond  from  the  defendant  instead  of  subjecting  him  to  an 
injunction."17 

§  217.  Injunctions  to  restrain  the  Infringement  of  Copyrights.  — 
The  Revised  Statutes  authorize  injunctions  to  prevent  the  in- 
fringement of  copyrights,  as  follows :  "  The  circuit  courts,  and 
district  courts  having  the  jurisdiction  of  circuit  courts,  shall  have 
power,  upon  bill  in  equity,  filed  by  any  party  aggrieved,  to  grant 
injunctions  to  prevent  the  violation  of  any  right  secured  by  the 
laws  respecting  copyrights,  according  to  the  course  and  prin- 
ciples of  courts  of  equity,  on  such  terms  as  the  court  may  deem 
reasonable." 1  This  statute  is,  however,  merely  declaratory  of 
the  previous  rule  in  equity  which,  it  was  said  by  Lord  Eldon, 
was  "founded  upon  this;  that  the  law  does  not  give  a  complete 
remedy  to  those  whose  literary  property  is  invaaed ;  for  if  pub- 
lication after  publication  is  to  be  made  a  distinct  cause  of  action, 
the  remedy  would  soon  become  worse  than  the  disease.  This 
court,  therefore,  interposes  by  injunction  ;  but  not  in  cases  where 
an  action  cannot  be  maintained." 2  The  rules  regulating  the 
issue  of  injunctions  to  prevent  the  infringement  of  copyrights  are 
in  general  similar  to  those  regulating  the  issue  of  injunctions 
restraining  the  infringement  of  patents.  The  plaintiff  must 
show  a  clear  title  to  his  copyright,  and  an  infringement  or  threat- 
ened infringement  by  the  defendant.3  The  injunction  will  be 
denied  if  the  defendant  shows  that  the  plaintiff  has  consented  to 
his  infringement,  or  has  been  guilty  of  unreasonable  delay  after 
he  learned  that  it  had  occurred  or  was  threatened.4     How  long 

17  "Walker  on  Patents,  §  665.      ,  Senile,  12  Fed.  R.  97  ;  Drone  on  Copy- 

§  217.   »  U.  S.  R.  S.  §  4070.  right,  ch.  xi.  pp.  496-543. 
2  Lawrence  v.  Smith,  Jacob,  471, 472.  4  Rundell    v.    Murray,    Jacob,     311 

8  Chase  v.  Sanborn,  6  Off.  Gaz.  932 ;  Saunders  v.  Smith,   3  Myl.   &   Cr.  711 

Parkinson   v.  Laselle,  3  Saw.  330 ;  Law-  Chappell    v.   Sheard,   1   Jur.  n.  s.   996 

reuce  v.  Dana,  4  Cliff.  1 ;   Yuengling  v.  Tinsley  v.  Lacy,  1  Hem.  &  M.  747 ;  Keene 


§  217.]   TO  RESTRAIN  THE  INFRINGEMENT  OF  COPYRIGHTS.      315 

a  time  must  have  elapsed  to  bar  the  plaintiff's  right  to  an  in- 
junction has  not  been  definitely  settled.  It  has  been  held  in 
England,  however,  that  an  injunction  may  be  obtained  after  the 
copyright  has  been  infringed  to  the  plaintiff's  knowledge  during 
four  years.5  Moreover,  delay  will  not  prejudice  him,  if  solely 
caused  by  his  waiting  until  the  result  of  litigation,  whether 
prosecuted  by  himself  or  others,  to  settle  a  doubtful  question  of 
law  involving  the  validity  of  his  title.6  As  has  been  said,  an  in- 
junction will  not  be  granted  unless  the  plaintiff  shows  a  plain 
title  to  the  copyright  which  he  claims ;  but  "  the  copyright  is 
prima  facie  evidence  that  he  is  the  author,  and  the  burden  of 
proof  is  upon  the  defendant  to  show  the  contrary,"7  or  that,  for 
some  other  reason,  there  is  a  defect  in  the  title  claimed.8  And 
the  court  will  protect  an  equitable  title  against  infringement 
unless  the  defendant  possesses  superior  equities  to  those  of  the 
complainant.9  The  complainant  is  not  obliged  to  prove  damage 
from  the  breach  of  copyright.10  If  there  is  any  doubt  concerning 
the  infringement  and  its  ascertainment  will  necessitate  the  ex- 
amination of  a  great  deal  of  matter,  the  court,  in  this  country, 
usually  directs  a  reference  to  a  master  to  hear  testimony  and 
state  the  facts  together  with  his  opinion  for  its  consideration, 
before  granting  an  injunction.11  Such  a  reference  is  usually 
ordered  before  the  final  hearing,  but  may  be  at  the  decree.12  In 
England,  however,  laborious  examinations  have  frequently  been 
made  by  the  judges  themselves,  unassisted,  except  by  counsel.13 
Instead  of  a  reference,  an  Issue  at  law  may  be  directed.14  The 
plaintiff  need  not  specify  in  either  his  bill  or  his  affidavit  the 
parts  of  the  defendant's  publication  which  he  thinks  have  been 
taken  from  his   work.       A  general   allegation  of  infringement 

v.  Clarke,  5  Robertson  (N.  Y.),  38,  06,  67  ;  u  Folsom  v.  Marsh,  2  Story,  100;  Webb 

Miller  v.  M'Elroy,  1  Am.  Law  Reg.  198.  v.  Powers,  2  W.  &  M.  497  ;  Story  ».  Derby, 

5  Hogg  v.   Scott,  L.  R.    18  Eq.  444,  4   McLean,   160 ;    Greene   v.   Bishop,    1 
454  ;  Drone  on  Copyright,  504,  512.  Cliff.  186 ;  Lawrence  v.  Dana,  4  Cliff.  1 ; 

6  Buxton  v.  James,  5  De  G.  &  Sm.  80;  Drone  on  Copyright,  513.     But  see  Smith 
Rumford  Chemical   Works   v.  Vice,   14  v.  Johnson,  4  Blatchf.  252. 

Blatchf.  179.  12  Lawrence  v.  Dana,  4  Cliff.  1 ;  Drone 

7  Chief    Justice    Taney   in    Reed    v.     on  Copyright,  513. 

Carusi,  Taney,  72,  74.  13  Lewis  i-.Fullarton,  2  Beav.  6  ;   Mur- 

8  Drone  on  Copyright,   499;    Story's     ray  w.' Bogue,   1    Drew.  353;  Jarrold  v. 
Eq.  Jur.  §  936,  note  6.  Houlston,  3  Kay  &  J.  708  ;  Pike  v.  Nicho- 

9  Little  v.  Gould,  2  Blatchf.  165.  las,  L.  R.  5  Ch.  251 ;   Drone  on  Copy- 
10  Reed  v.  Holliday,  19  Fed.  R.  325,     right,  513. 

327.  w  jollie  v.  Jaques,  1  Blatchf.  618. 


316  INJUNCTIONS.  [CHAP.  XVI. 

accompanied  by  a  verification  by  affidavit  of  the  two  works  is 
sufficient.15  The  practice  has  been  that,  "  when  the  injunction 
has  been  moved  for,  the  two  works  have  been  brought  into 
court,  and  the  counsel  have  pointed  out  to  the  court  the  passages 
which  they  rely  upon  as  showing  the  piracy."  16  Clearer  proof 
and  a  stronger  case  than  would  be  sufficient  to  entitle  a  plaintiff 
to  an  injunction  after  the  hearing  is  often  required  before  he  can 
obtain  an  interlocutory  injunction.17  The  difficulty  of  accurately 
determining  the  damages  resulting  from  an  unauthorized  publi- 
cation of  his  work  will  often  have  weight  in  leading  the  court  to 
grant  a  preliminary  injunction,  when  otherwise  it  might  refuse 
one.18  But,  on  the  other  hand,  the  court  will  often  refuse  an 
injunction  before  the  hearing,  when  it  is  plain  that  the  defendant 
would  suffer  more  injury  from  being  obliged  to  discontinue  the 
publication  than  will  result  to  the  plaintiff  from  his  continuing 
it.19  It  has  been  held,  in  England,  that  if  a  work  is  libellous,  im- 
moral, or  blasphemous,  which  last  named  term  would  include  one 
"  which  impugned  the  doctrines  of  the  immateriality  and  immor- 
tality of  the  soul,"20  there  can  be  no  copyright  therein,  and  a 
piratical  edition  thereof  will  not  be  enjoined.21  These  decisions, 
however,  one  of  which  stigmatized  as  unworthy  of  protection 
Byron's  "  Cain,"22  have  been  severely  criticised,23  and  it  is  not 
likely  that  they  would  be  fully  sustained  if  the  question  should 
be  raised  in  the  United  States ;  although  in  a  case  in  the  Federal 
courts  Judge  Deady  assigned  as  one  among  several  reasons  for 
refusing  to  enjoin  an  unauthorized  representation  of  "  The  Black 
Crook,"  that  it  "  only  attracts  attention  as  it  panders  to  a  pru- 
rient curiosity  or  an  obscene  imagination  by  very  questionable 

I6  Farmer  v.  Calvert  Lithographing  Co.,     137.    But  see  Emerson  v.  Davies,  3  Story, 

I  Flippin,  228,  235  ;  Sweet  v.  Maugham,     768. 

II  Simons,    51;   Drone   on    Copyright,        20  Lawrence  v.  Smith,  Jacob,  471. 
513.  21  Walcot  v.  Walker,  7  Ves.  1 ;  Stoek- 

16  Sweet  v.  Maugham,  11  Simons,  51,  dale   v.   Onwhyn,  5  Barn.   &   Cr.   173; 
53,  Murray  v.  Benbow,  6  Petersd.  Abr.  559 ; 

17  Johnson  v.  Wyatt,  2  De  G.,  J.  &  S.  Lawrence  v.  Smith,  Jacob,  471 ;  Southey 
18  ;  Drone  on  Copyright,  517,  518.  v.  Sherwood,  2  Meriv.  435.     But  see  Bur- 

18  Matthewson  v.    Stockdale,   12  Ves.  nett  v.  Chetwood,  2  Meriv.  441. 

270 ;   Wilson  v.  Luke,  1  Victorian  Law  az  Murray  v.  Benbow,  6  Petersd.  Abr. 

Rep.  127  ;  Prince  Albert  v.  Strange,  1  Mac.  559. 

&  G.  25,  46 ;  Little  v.  Gould,  2  Blatchf.  23  Campbell's  Lives  of  the  Lord  Chan- 

165  ;  Drone  on  Copyright,  516-519.  cellors,  ch.  ccxiii. ;   Drone  on  Copyright, 

19  Spottiswoode  v.  Clarke,  2  Phil.  154  ;  181-196. 
Cox  v.  Land  &  Water  Journal  Co.,  L.  R. 

9  Eq.  324 ;  Lodge  v.  Stoddart,  9  Reporter, 


§  218.]      TO   RESTRAIN   THE   UNLAWFUL   USE   OF   TRADE-MARKS.       317 

exhibitions  and  attitudes  of  the  female  person."24  The  injunc- 
tion forbids  the  publication  of  only  so  much  of  the  defendant's 
work  as  infringes  upon  the  copyright  of  the  plaintiff.25 

§  218.    Injunctions  to   restrain  the  Unlawful  Use  of  Trade-marks. 

Injunctions    to   restrain    the    use    of    trade-marks   by   others 

than  their  owners  are  granted  by  courts  of  equity,  it  has  been 
said,  partly  to  prevent  the  fraud  upon  the  public  which 
would  otherwise  be  perpetrated,  and  partly  on  account  of  the 
difficulty  of  estimating  the  injury  which  would  be  caused  the 
owner  of  a  trade-mark  from  its  improper  use.1  The  former 
ground  of  the  interference  of  the  court  has,  however,  been 
expressly  repudiated  by  a  great  judge,  Lord  Westbury,  who 
said,  when  Lord  Chancellor,  in  delivering  the  judgment  in  a 
leading  case  :  "  Imposition  upon  the  public  becomes  the  test 
of  the  property  in  the  trade-mark  having  been  invaded  and 
injured,  but  not  the  ground  on  which  the  Court  rests  its  juris- 
diction." 2  "  Trade-marks  are  of  two  kinds.  They  may  consist 
of  pictures  or  symbols  or  a  peculiar  form  and  fashion  of  label,  or 
simply  of  a  word  or  words,  which,  in  whatever  form  printed  or 
represented,  continue  to  be  the  distinguishing  mark  of  the  man- 
ufacturer who  has  appropriated  it  or  them,  and  the  name  by 
which  his  products  are  known  and  dealt  in." 3  "  Where  the 
trade-mark  consists  of  a  picture  or  symbol,  or  in  any  peculiarity 
in  the  appearance  of  the  label,  the  imitation  must  be  such  as  to 
amount  to  a  false  representation,  liable  to  deceive  the  public  and 
enable  the  imitator  to  pass  off  his  goods  as  those  of  the  person 
whose  trade-mark  is  imitated.  And  when  there  is  such  an  ab- 
sence of  resemblance  that  ordinary  attention  would  enable  cus- 
tomers to  discriminate  between  the  trade-marks  of  different 
parties,  the  court  will  not  interfere."4  "  But  where  the  trade- 
mark consists  of  a  word,  it  may  be  used  by  the  manufacturer 
who  has  appropriated  it,  in  any  style  of  print,  or  in  any  form  of 

24  Judge  Deady  in  Martinetti  v.  Ma-  2  The  Leather  Cloth  Co.  v.  The  Amer- 
guire,  1  Deady,  216,  223.  ican  Leather  Cloth   Co.,  10  Jur.   (s.  s.) 

25  Webb  v.  Powers,  2  W".  &  M.  497;  81.  But  see  the  language  of  Judge  Coxe 
Story  v.  Holcombe,  4  McLean,  306  ;  in  Shaw  Stocking  Co.  v.  Mack,  12  Fed. 
Farmer  v.  Elstner,  33  Fed.  R.  494.  R.  707,  710. 

§  218.   !  Perry  v.  Truefit,  6  Beav.  66,  3  Judge  Rapallo  in  Hier  v.  Abrahams, 

73 ;  Croft  v.  Day,  7  Beav.  84 ;   Leather  82  N.  Y.  510,  523. 

Cloth  Co.  v.  The  American  Leather  Cloth  4  Judge  Rapallo  in  Hier  v.  Abrahams, 

Co.,  10  Jur.  (n.  s.)  81 ;  Walton  v.  Crow-  82  N.  Y.  619,  523. 
ley,  3  Blatchf.  440 ;  Shaw  Stocking  Co. 
v.  Mack,  12  Fed.  R.  707. 


318  INJUNCTIONS.  [CHAP.  XVI. 

label,  and  its  use  by  another  is  unlawful.  The  statute  "  of  New 
York  "requires  only  that  the  imitation  should  be  either  the  same 
to  the  eye,  or  in  sound  to  the  ear  as  the  genuine  trade-mark, 
and  this  accords  with  the  authorities."5  "To  make  an  exclu- 
sive right  to  use  a  name  or  symbol  as  a  trade-mark,  such  use  must 
be  new  ;  if  ever  before  used  as  applicable  to  a  like  article,  it 
cannot  be  exclusively  appropriated.  If  the  article  is  known 
to  commerce  in  general,  by  the  term  claimed,  as  a  trade-mark, 
the  claim  is  ill-founded.  If  the  term  employed  indicates  the 
nature,  kind  or  quality  of  the  article,  instead  of  showing  its 
origin,  an  exclusive  right  to  its  use  is  not  maintainable."  6  In 
accordance  with  the  maxim  that  he  who  seeks  equity  must 
come  with  clean  hands,  it  is  well  established  that,  if  the  trade- 
mark for  which  protection  is  sought  contains  representations 
calculated  to  deceive  the  public,  an  injunction  will  be  denied  the 
plaintiff.7  An  act  of  Congress  allowing  suits  to  enjoin  the  use 
of  trade-marks  to  be  brought  in  a  Federal  court  against  a 
citizen  of  the  same  State  as  the  complainant,  was  held  uncon- 
stitutional.8 

§  219.  Injunctions  to  prevent  the  Opening  of  Letters.  —  In  Eng- 
land an  injunction  has  been  issued  to  prevent  the  tenants  of  a 
building  formerly  occupied  by  the  members  of  another  firm  from 
opening  letters  addressed  to  the  latter.1 

§  220.  Injunctions  to  compel  the  Performance  or'  prevent  the 
Breach  of  Contracts  not  affecting  Land.  —  The  performance  of  a 
contract  not  affecting  lands  will  be  enforced  in  equity  by  means 
of  an  injunction  when,  and  only  when,  a  judgment  for  damages 
would  be  no  adequate  remedy  for  its  breach; 1  and  it  does  not  re- 
quire a  purely  personal  act  which  it  would  be  impossible  for  the 
court  to  enforce.2  The  inadequacy  of  the  remedy  at  law  which 
will  entitle  one  to  specific  performance  of  a  contract  may,  it  has 
been  held,  be  proved  by  the  fact  that  the  damages  in  money 

5  Judge  Rapallo  in  Hier  v.  Abrahams,  8  Trade-Mark  Cases,  100  U.  S.  82. 

82  N.  Y.  510,  521.  §  210.   i  Scheile  v.  Brakell,  11  W.  R. 

6  Van  Beil   v.  Prescott  (The   Rye  &     796. 

Rock  Case),  82  N.  Y.  630.  §  220.   *  Buxton  v.  Lister,  3  Atk.  383; 

7  Leather  Cloth  Co.  v.  The  American  Robinson  v.  Cathcart,  2  Cranch  C.  C.  590 ; 
Leather  Cloth  Co.,  11  H.  L.  C.  523  ;  s.  c.  Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How. 
in  a  lower  court,  10  Jur.  (n.  b.)  81;  300;  Very  v.  Levy,  13  How.  345. 
Fowle  v.  Spoar,  7  Penn.  L.J.  176;  Heath  2  Clarke  v.  Price,  2  Wilson  Ch.  Cases, 
v.  Wright,  3  Wall.  Jr.  141 ;  Ginter  v.  Kin-  157  ;  Mair  v.  Himalaya  Tea  Co.,  L.  R.  1 
ney  Tobacco  Co.,  12  Fed.  R.  782.  Eq.  411. 


§  222.]  INJUNCTIONS   AUTHORIZED   BY    STATUTE.  319 

cannot  be  ascertained.3  In  some  cases  an  injunction  may  be  ob- 
tained to  restrain  a  defendant  from  violating  a  negative  promise 
contained  in  a  contract,  although  the  court  has  no  power  spe- 
cifically to  enforce  the  affirmative  promises  contained  therein. 
Thus,  when  opera  singers  had  contracted  to  sing  at  the  plaintiffs' 
theatre  and  nowhere  else,  injunctions  have  been  granted  to  re- 
strain them  from  singing  in  rival  establishments,  although  they 
could  not  be  compelled  to  sing  for  the  plaintiffs.4  The  rule  has 
been  thus  stated  by  Judge  Lowell :  "  I  think  the  fair  result  of 
the  later  cases  may  be  thus  expressed  :  If  the  case  is  one  in 
which  the  negative  remedy  of  injunction  will  do  substantial  jus- 
tice between  the  parties,  by  obliging  the  defendant  either  to 
carry  out  his  contract  or  lose  all  benefit  of  the  breach,  and 
the  remedy  at  law  is  inadequate,  and  there  is  no  reason  of 
policy  against  it,  the  court  will  interfere  to  restrain  conduct 
which  is  contrary  to  the  contract,  although  it  may  be  unable  to 
enforce  a  specific  performance  of  it."  5  But  where  the  affirmative 
promise  cannot  be  specifically  enforced,  the  court  will  not  import 
into  it  a  negative  covenant,  neither  expressly  nor  by  a  fair  im- 
plication contained  therein.6 

§  221.  Injunctions  to  compel  the  Delivery  of  Personal  Property 
tortiously  withheld. —  Under  very  extraordinary  circumstances, 
equity  will  interfere  to  compel  by  injunction  the  delivery  or 
return  of  letters,  documents,  or  other  articles  of  such  a  unique 
character  that  it  would  be  impossible  to  replace  them,  when  they 
are  tortiously  withheld  from  their  rightful  owners.1 

§  222.  Injunctions  authorized  by  Statute.  —  The  statutes  of  the 
United  States  also  authorize  an  injunction  in  the  following  cases, 
besides  those  arising  from  infringements  of  patents  and  copy- 
rights: "Any  person  who  considers  himself  aggrieved  by  any 
warrant  of  distress  issued  under  the  "  provisions  of  the  statutes 

s  Adderley  w.  Dixon,  1    Sim.  &  Stu.  6  Clarke  v.  Price,  2  Wilson  Ch.  C.  157  ; 

607  ;  Sullivan  v.  Tuck,  1  Md.  Ch.  50 ;  Fin-  Pickering  v.  Bishop  of  Ely,  2  Y.  &  C. 

ley  v.  Aiken,   1  Grant's  Cases   (Pa.)  83;  Ch.  C.  249;   Johnson   v.   Shrewsbury  & 

Bispham's  Eq.  §  3G9.  Birmingham  Ry.  Co.,  3  De  G-,  M.  &.  G. 

*  Lumley  v.  Wagner,  1  De  G.,  M.  &  G.  914  ;  Bispham's  Eq.  §  464  ;   Kerr  on  In- 

604  ;  McCaull  v.  Braham,  16  Fed.  R.  37.  junctions,  524. 

6  Singer  Co.  v.  Union  Co.,  1  Holmes,  §  221.   1  Pusey  v.  Pusey,  1  Vern.273; 

253,  258.     See  also  Goddard  v.  Wilde,  17  Duke  of  Somerset  v.  Cookson,  3  P.  Wms. 

Fed.  R.  845;  W.  U.  Tel.  Co.  v.  Union  3S9  ;  Clarke  v.  White,  12  Pet.  178  ;  Prince 

Pacific  Ry.  Co.,  3  Fed.  R.  423  ;  W.  U.  Tel.  Albert  v.  Strange,  1  Macn.  &  G.  25,  42 ; 

Co.  v.  St.  Joseph  &  W.  Ry.  Co.,  3  Fed.  R.  McGowin  v.  Remington,  12  Pa.  St.  56. 
4o0. 


320  INJUNCTIONS.  [CHAP.  XVI. 

authorizing  one  to  be  issued  by  the  Solicitor  of  the  Treasury 
against  an  officer  in  default  for  not  accounting  for  and  paying 
over  public  money  received  by  him,  "  may  prefer  a  bill  of  com- 
plaint to  any  district  judge  of  the  United  States,  setting  forth 
therein  the  nature  and  extent  of  the  injury  of  which  he  com- 
plains ;  and  thereupon  the  judge  may  grant  an  injunction  to  stay 
proceedings  on  such  warrant  altogether,  or  for  so  much  thereof 
as  the  nature  of  the  case  requires.  But  no  injunction  shall  issue 
till  the  party  applying  for  it  gives  bond  with  sufficient  security, 
in  a  sum  to  be  prescribed  by  the  judge,  for  the  performance  of 
such  judgment  as  may  be  awarded  against  him ;  nor  shall  the 
issuing  of  such  injunction  in  any  manner  impair  the  lien  pro- 
duced by  the  issuing  of  the  warrant.  And  the  same  proceedings 
shall  be  had  in  such  injunction  as  in  other  cases,  except  that  no 
answer  shall  be  necessary  on  the  part  of  the  United  States ;  and 
if,  upon  dissolving  the  injunction,  it  appears  to  the  satisfaction 
of  the  judge  that  the  application  for  the  injunction  was  merely 
for  delay,  the  judge  may  add  to  the  lawful  interest  assessed  on 
all  sums  found  due  against  the  complainant  such  damages  as, 
with  such  lawful  interest,  shall  not  exceed  the  rate  of  ten  per 
centum  a  year.  Such  injunction  may.be  granted  or  dissolved 
by  the  district  judge  either  in  or  out  of  court."  J  "  When  the 
district  judge  refuses  to  grant  an  injunction  to  stay  proceedings 
on  a  distress  warrant,  as  aforesaid,  or  dissolves  such  injunction 
after  it  is  granted,  any  person  who  considers  himself  aggrieved 
by  the  decision  in  the  premises  may  lay  before  the  circuit  justice, 
or  circuit  judge  of  the  circuit  within  which  such  district  lies, 
a  copy  of  the  proceeding  had  before  the  district  judge ;  and 
thereupon  the  circuit  justice  or  circuit  judge  may  grant  an 
injunction,  or  permit  an  appeal,  as  the  case  may  be,  if,  in  his 
opinion,  the  equity  of  the  case  requires  it.  The  same  proceed- 
ings, subject  to  the  same  conditions,  shall  be  had  upon  such 
injunction  in  the  circuit  court  as  are  prescribed  in  the  district 
court."2  "Whenever  an  association  against  which  proceedings 
have  been  instituted,  on  account  of  any  alleged  refusal  to  redeem 
its  circulating  notes  as  aforesaid,  denies  having  failed  to  do  so,  it 
may,  at  any  time  within  ten  days  after  it  has  been  notified  of  the 
appointment  of  an  agent,  as  provided  in  section  fifty-two  hun- 
dred and  twenty-seven  "  of  the  Revised  Statutes  of  the  United 
§  222.  i  U.  S.  R.  S.  §  3636.  2  U.  S.  R.  S.  §  3637. 


§  223.]  WHEN   INJUNCTIONS   WILL   NOT   ISSUE.  321 

States,  "apply  to  the  nearest  circuit,  or  district,  or  territorial 
court  of  the  United  States  to  enjoin  further  proceedings  in  the 
premises  ;  and  such  court,  after  citing  the  Comptroller  of  the 
Currency  to  show  cause  why  further  proceedings  should  not  be 
enjoined,  and  after  the  decision  of  the  court  or  finding  of  a 
jury  that  such  association  has  not  refused  to  redeem  its  circulat- 
ing notes,  when  legally  presented,  in  the  lawful  money  of  the 
United  States,  shall  make  an  order  enjoining  the  Comptroller, 
and  any  receiver  acting  under  his  direction,  from  all  further 
proceedings  on  account  of  such  alleged  refusal."3  Compliance 
with  the  Inter-State  Commerce  Act  may  also  in  certain  cases  be 
compelled  by  an  injunction.4 

§  223.  When  Injunctions  will  not  Issue.  —  As  a  general  rule,  it 
may  be  stated  that  an  injunction  will  not  issue  at  the  prayer  oc 
one  who  will  suffer  no  pecuniary  injury  from  the  act  which  he 
wishes  to  prevent.1  Thus,  one  will  not  be  granted  at  the  suit 
of  a  State  to  prevent  the  invasion  of  a  purely  political  right.2  or 
of  adjacent  property  owners  and  church  members  to  prevent  a 
railroad  from  outraging  their  religious  feelings  by  running  cars 
upon  Sunday;3  nor  at  the  suit  of  minister  of  the  gospel  to  pre- 
vent the  use  of  his  building  for  theatrical  purposes,  under  a  lease 
the  validity  of  which  he  disputes.4  The  Emperor  of  Austria  and 
King  of  Hungary,  however,  was  allowed  an  injunction  to  prevent 
Kossuth  and  his  associates  from  manufacturing  in  England  paper 
currency  not  purporting  to  be  issued  by  imperial  authority, 
intended  for  circulation  in  Hungary,  upon  the  ground  that  his 
property  rights  were  thereby  injured.5  An  injunction  will  not 
issue  to  prevent  an  injury  which  is  not  actually  threatened  to  the 
complainant.6  Thus,  an  injunction  will  not  be  granted  to  pre- 
vent an  injury  to  a  navigable  stream,  at  the  suit  of  an  individual 
who  is  not  engaged  in  navigating  the  same  ; 7  nor,  at  the  suit  of  a 
coupon  holder  who  is  not  liable  to  the  payment  of  taxes  to 
a  State,  to  prevent  the  State  officers  from  refusing  to  receive  his 
coupons,  when  tendered  by  others  to  whom  he   has  agreed  to 

8  U.  S.  R.  S.  §  5237.  628  ;  s.  c.  on  appeal,  3  De  G.,   F.  &  J. 

4  24  St.  at  L.  380 ;  25  St.  at  L.  855.  217. 

§  223.    l  High  on  Injunctions,  §  20.  °  Slessingcr  v.   Buckingham,  17  Fed. 

2  Georgia  v.  Stanton,  6  Wall.  50.  R.  454. 

8  Sparhawk  v.  Union  P.  R.  R.  Co.,  54  7  Spooner   v.   McConnell,  1  McLean, 

Pa.  St.  401.  337.     See  also  Mason  v.  Kollins,  2  Hiss. 

4  Bodwoll  v.  Crawford,  26  Kan.  292.  99.     Compare  Works  v.  Junction   R.  R., 

6  Emperor  of  Austria  v.  Day,  2  Giff.  5  McLean,  425. 

21 


322  INJUNCTIONS.  [CHAP.  XVI. 

assign  them  for  the  payment  of  their  taxes,  in  pursuance  of  a  con- 
tract made  by  the  State  with  its  creditors  and  their  successors.8 
"  No  court  sits  to  determine  questions  of  law  in  thesi" 9  A  threat 
of  irreparable  injury  to  a  right  actually  enjoyed  and  exercised  by 
the  complainant,  or  acts  indicating  a  preparation  to  commit  such 
a  wrong,  are,  however,  always  a  ground  for  the  issue  of  an  injunc- 
tion.10 And  after  a  defendant  has  once  infringed  a  patent  owned 
by  the  plaintiff,  it  seems  that  the  court  will  always  enjoin  him 
from  doing  so  in  the  future,  even  though  he  swears  that  he  has 
no  intention  of  doing  so  again;  unless  in  addition  to  so  swearing 
he  shows  that  he  has  paid  all  damages  occasioned  by  his  infringe- 
ment, and  has  desisted  from  it.11  An  injunction  cannot  be  issued 
against  the  United  States ; 12  nor  against  an  officer  to  interfere 
with  the  exercise  of  his  discretion  ; 13  nor,  it  has  been  suggested, 
against  an  officer  of  the  United  States  to  prevent  the  infringe- 
ment of  a  patent  by  him  while  in  the  exercise  of  his  official 
duties.14  The  Revised  Statutes  provide  that  "  No  suit  for  the 
purpose  of  restraining  the  assessment  or  collection  of  any 
tax "  imposed  by  the  United  States  for  purposes  of  internal 
revenue,  "shall  be  maintained  in  any  court."15  Under  this 
provision,  it  has  been  held  that  wherever  a  tax  is  imposed  by  a 
person  in  office  having  authority  over  the  assessment  of  taxes  for 
the  United  States,  and  acting  under  color  of  a  statute,  no  injunc- 
tion will  be  issued  to  restrain  its  collection,  no  matter  how 
erroneous  the  assessment  may  be,  and  although  the  person 
against  whom  the  assessment  is  made  does  not  own  the  property 
taxed.16     "It  is  sufficient  that  a  statute  has  authorized  the  asses- 

8  Virginia  Coupon  Case«,  Marye  v.  12  United  States  v.  McLemore,  4  How. 
Parsons,  114  U.  S.  325.  286;  Hill  v.  United  States,  9  How.  386. 

9  Mr.  Justice  Matthews  in  Virginia  13  Mississippi  v.  Johnson,  4  Wall.  475 ; 
Coupon  Cases,  Marye  v.  Parsons,  114  Walker  v.  Smith,  21  How.  579;  McElrath 
U.  S.  325,  330.  v.  Mcintosh,  1  Law  Repr.  (n.  s.)  399. 

io  St.  Louis  v.  Knapp  Co.,  104   U.  S.  "  James  v.  Campbell,  104  U.  S.  356  ; 

658;  Sherman  v.  Nutt,  35  Fed.  R.  149;  Hollister  v.  Benedict  &  B.Manuf.  Co.,  113 

Butz   Thermo-Electric  Regulator  Co   v.  U.  S.  59,  67. 

Jacobs  Electric  Co.,  36  Fed.  R.  191 ;  Mc-  «  U.  S.  R.  S.  §  3224. 

Arthur  v.  Kelly,  5  Ohio,   139;  Frearson  18  Kensett  v.  Stivers,  10  Fed.  R.  517; 

t>.  Loe,  L.  R.  0  Ch.  D.  48.     See  also  Piek  v.  Pullan  v.  Kinsinger,   2  Abb.  U.   S.  94; 

Chicago  &  N.  W.  Ry.  Co.,  6  Biss.  177.  Howland  v.  Soule,  Deady,  413  ;  Delaware 

n  Jenkins  v.  Greenwald,  1  Bond,  126  ;  R.  Co.  v.  Prettyman,  17  Int.  Rev.  Rec.  99; 

R.c.  2  Fislier,  37;  Sickels  v.  Mitchell,  3  Alkan  v.  Bean,  23  Int.  Rev.  Rec.  351 ;  Kis- 

Blatchf.  548  ;  Poppenhusen  v.  New  York  singer  v.  Bean,  7  Biss.  60 ;  United  States  v. 

Gutta  Percha  Comb  Co.,  4  Blatchf.  184  ;  Black,  11  Blatchf.  538.     But  see  Frayser 

Celluloid  Manuf.  Co.  v.  Arlington  Manuf.  v.  Russell,  3  Hughes,  227. 
Co.,  34  Fed.  R.  324. 


§  223.]  WHEN   INJUNCTIONS   WILL   NOT   ISSUE.  323 

sor  to  entertain  the  general  subject  of  taxation ;  that  it  was  in 
fact  entertained,  and  a  judgment,  lawful  or  unlawful,  was  ren- 
dered concerning  it."17  It  seems  that  the  unconstitutionality  of 
the  statute  imposing  the  tax  will  not  authorize  the  issue  of  an 
injunction.18  An  injunction  cannot  be  issued  against  a  State  at 
the  suit  of  a  citizen  of  another  State  or  of  a  foreign  State.19  Nor 
can  a  mandatory  injunction  be  issued  against  an  officer  of  a  State 
so  as  to  compel  the  action  of  the  State  against  its  expressed  will.20 
But  an  officer  of  a  State  may  be  enjoined  from  an  invasion  of 
private  rights  which  would  cause  irreparable  injury,  when  about 
to  act  under  an  unconstitutional  act  of  the  legislature  of  the 
State.21  As  has  been  said_before,  an  injunction  will  not  ordinarily 
be  granted  to  stay  proceedings  in  a  State  court.22  In  England, 
a  person  may  be  restrained  from  petitioning  or  applying  to  the 
legislature  in  order  to  procure  the  passage  of  an  act  relating 
solely  to  private  interests,  provided  he  be  under  an  express  or 
implied  agreement  not  to  do  so,  or  his  doing  so  would  amount 
to  a  breach  of  trust.23  This  doctrine  has,  however,  never  been 
upheld  in  the  United  States,  and  in  a  well-considered  case  in 
New  Jersey  was  expressly  repudiated.24  The  early  English  cases 
held  that  an  injunction  would  not  issue  to  restrain  the  publica- 
tion of  a  slander  or  libel,  no  matter  how  injurious  it  might  be  to 
the  complainant.25  Since  the  passage  of  the  Judicature  Act, 
however,  such  injunctions  have  been  granted  there  in  order  to  pro- 
tect rights  of  property.23  An  injunction  was  denied  when  sought 
to  prevent  a  defendant  from  advertising  that  a  patent  was  void, 
and  it  appeared  that  he  honestly  believed  it  to  be  so,  and  pub- 
lished the  statement  for  the  sole  purpose  of  protecting  what  he 

"  Emmons,  J.,  in  Pullan  v.  Kinsinger,  "  U.  S.  R.  S.  §  720  ;  supra,  §  211. 

2  Abb.  U.  S.  94,  99.  23  Ware  v.  The  Grand  Junction  Water 

i8  Robbins  ».  Freeland,  14  Int.  Rev.  Rec.  Works  Co. ,  2  Russ.  &  M.  470  ;  The  Stoek- 

28.  ton  &  H.  Ry.  Co.  v.  The  Leeds  &  Th.  Ry. 

19  Eleventh  Amendment  of   the   Con-  Co.,  2  Phil.  666. 

Btitution.  24  Story  v.  The  Jersey  City  &  Bergen 

20  Louisiana  v.  Jumel,  107  U.  S.  711;     Point  Plank  Road  Co.,  1  C.  E.  Green  (16 
Antoni  v.  Greenhow,  107  U.  S.  769,  782-     N.  J.  Eq.)  IB. 

784  ;    Cunningham  v.  Macon   &    Bruns-  25  Prudential  Assur.  Co.  v.  Knott,  L.  R. 

wick  R.  R.  Co.,  109  U.  S.  446.  10  Ch.  142;  Clark  v.  Freeman,  11  Beav. 

21  Osborn  v.  Bank  of  the  United  States,  112.      See  also  Brandreth    v.  Lance,    8 
9  Wheat.  738;  Davis  v.  Gray,  16  Wall.  Paige  (N.  Y.)  24. 

203 ;  Board  of  Liquidation  v.  MeComb,  92  2G  Thorley's  Cattle  Food  Co.  v.  Massam, 

U.  S.  531;  Virginia  Coupon  Cases,  114  L.  R.  6  Ch.  D.  582  ;  Saxby  v.  Easterbrook, 

U.  S.  26C.     See,  however,  In  re  Ayers,  L.  R.  3  C  P.  D.  339 ;   Wren  j;.  Weild, 

123  U.  S.  443.  L.  R,  4  Q.  B.  730. 


324  INJUNCTIONS.  [CHAP.  XVI. 

believed  to  be  his  rights.27  Whether  a  Federal  court  will  in  any 
case  grant  an  injunction  against  the  publication  of  a  libel  is  a 
disputed  question.28  An  injunction  will  not  issue  to  assist  in  the 
maintenance  of  a  monopoly  injurious  to  public  policy  j29  nor  in 
any  other  case  when  its  operation  would  be  repugnant  to  public 
policy.30  An  injunction  will  not  be  issued  when  the  moving 
party  has  a  plain,  adequate,  and  complete  remedy  at  law.31 

§  224.  Distinction  between  the  Judicial  Writ  and  the  Writ 
Remedial.  —  Injunctions  were  formerly  either  judicial  writs  or 
writs  remedial.  A  judicial  writ  was  a  direction  to  yield  up,  to 
quiet,  or  to  continue  the  possession  of  lands,  and  is  said  to  be  in 
the  nature  of  a  writ  of  execution.1  It  was  issued  in  aid  of,  and 
only  after  a  final  decree  in  equity;  and,  in  extraordinary  circum- 
stances, in  aid  of  a  judgment  at  law.2  Under  the  equity  rules, 
however,  it  is  never  necessaiy  ;  and  it  had  previously  fallen  into 
disuse  in  England.     All  other  injunctions  are  writs  remedial. 

§  225.  Distinction  between  Mandatory  and  Prohibitory  Injunc- 
tions. —  Injunctions  are  either  mandatory  or  prohibitory.  A 
mandatory  injunction  is  one  that  commands  a  defendant  to 
perform  a  certain  act  or  acts ;  a  prohibitory  injunction,  one 
that  forbids  a  defendant's  doing  a  certain  act  or  acts.  Man- 
datory are  far  less  common  than  are  prohibitory  injunctions. 
Those  most  frequently  issued  have  been  such  as  commanded  a 
defendant  to  abate  a  nuisance,1  or  to  deliver  the  possession 
of  land.2     They  have  also   been  granted  to  compel  the  return 

27  Halsey  v.  Brotherhood,  45  L.  T.  n.  s.  35  Bryant  v.  W.  U.  Tel.  Co.,  17  Fed  R. 
640;  Celluloid  Manuf.  Co.  v.  Goodyear  825;  Blake  v.  Greenwood  Cemetery,  14 
Dental  Vulcanite  Co.,  13  Blatchf.  375 ;  Blatchf.  342 ;  Denehey  v.  Harrisburg,  2 
Pentlarge  v.  Pentlarge,  14  Repr.  579.  Pearson  (Pa.),  330,  334. 

28  Held  that  it  may,  in  Emack  v  Kane,  31  U.  S.  R.  S.  §  723. 

34  Fed.  R.  46,  U.  S.  C.  C,  N.  D.  Illinois,  §224.  *  Eden  on  Injunctions,  chs.i.  and 

by  Blodgett,  J.    Cf.  Palmer  v.  Travers,  xvii.  pp.  1-2,  261-262 ;  Beames'  Orders, 

20  Fed.  R.  501,  U.  S.  C.  C,  S.  D.  N.  Y.,  by  8,  16. 

Wheeler,  J.;  Celluloid  Manuf.  Co.  v.  Good-  2  Boult  v.  Blunt,  Cary,  72  ;   Eden  on 

year  D.  V.  Co.,  13  Blatchf.  375,  U.  S.  Injunctions,  262. 

C.  C,  S.  D.  N.  Y.  by   Hunt,  J.     Held  §  225.   »  Lane   v.  Newdigate,   10  Ves. 

that  it  cannot,  in  Kidd  v.  Horry,  28  Fed.  192;  Robinson  v.  Lord  Byron,  1  Bro.  C.  C. 

R.  773,  U.  S.  C.  C.,E.  D.  Pa.,  by  Bradley  588;    Heney  v.  Smith,  1  K.  &  J.  389; 

and     McKennan,    JJ. ;    Baltimore    Car-  Rankin  v.  Huskisson,  4  Simons,  13  ;  Bick- 

Wheel  Co.  v.  Bemis,  29  Fed  R.  95.  U.  S.  ett  v.  Morris,  L.  R.  1  H.  L.  Sc.  47  ;    Cole 

C.  C,  D.  Mass.,  by  Colt  and  Carpenter,  JJ.  Silver  Mining  Co.   v.   Virginia  &  G.  H. 

»  Pullman  Palace  Car  Co.  v.  Texas  &  Water  Co.,  1  Saw.  470. 

Pacific  Ry.  Co.,  11  Fed.  R.  625;   s.  c.  4  2  Hepburn   v.  Auld,  5    Cranch,  262; 

Woods    317;  Foil's  Appeal,   91    Pa.  St.  Hepburn  v.  Dunlop,  1  Wheat.  179  ;  Find- 

434,  4:J8.  lay  v.  Hinde,  1  Pet.  241. 


§  226.]  PROVISIONAL  AND  PERPETUAL   INJUNCTIONS.  325 

of  letters  and  other  documents,3  the  delivery  of  personal  pro- 
perty whose  loss  could  not  be  compensated  in  damages,4  the 
giving  of  collateral  security  in  obedience  to  a  contract,5  the 
making  of  a  policy  of  insurance,6  the  stopping  and  receiving 
freight  by  a  railroad  company  at  a  particular  place,7  and  the  per- 
formance of  a  contract  by  one  railroad  company  to  send  freight 
over  the  lines  of  another  railroad.8  The  court,  in  a  case 
involving  the  constitutionality  of  certain  Kentucky  statutes, 
refused  a  mandatory  injunction  compelling  a  distribution  of 
the  money  raised  by  a  tax  upon  white  people  partly  among 
public  schools  for  colored  children,  in  the  absence  of  any 
contract  right  or  legislative  authority  for  such  a  distribution ; 
but  it  granted  "  a  decree  enjoining  and  restraining  the  proper 
parties  from  applying  to  the  use  of  the  schools  organized  for 
and  at  which  white  children  only  are  allowed  to  attend  one- 
fourth  of  the  money  heretofore,  or  which  may  be  hereafter, 
collected  under  the  authority  of  the  act  of  1871  and  its  amend- 
ments."9 Mandatory  injunctions  are  usually  issued  in  a  neg- 
ative form,  restraining  a  defendant  from  desisting  or  refusing 
to  do  an  act.10  They  are  very  rarely  granted  upon  an  inter- 
locutory motion.11 

§  226.  Distinction  between  Provisional  and  Perpetual  Injunc- 
tions.—  Provisional,  also  called  preliminary  or  interlocutory, 
injunctions   are  such  as  are  to  continue   until   a  certain   time 

3  Evitt  v.  Price,  1  Simons,  483 ;  Seton  504;  Cole  Silver  Mining  Co.  v.  Virginia 

on    Decrees   (4th    ed.),    179.      See   also  &  G.  H.  Water  Co.,  1  Saw.  470. 
Clarke  v.  White,  12  Pet.  178.  u  Denver  &  N.  O.  R.  Co.  v.  Atchison, 

*  Pusey  v.  Pusey,  1  Vern.  273 ;  Duke  T.  &  S.  F.  R.  Co.,  13  Fed.  R.  646 ;   Mc- 

of  Somerset  v.  Cookson,  3  P.  Wms.  389  ;  Cauley  v.  Kellogg,  2  Woods,  13  ;  Camblos 

Greatrex  v.  Greatrex,  1  De  G.  &  Sm.  692 ;  v.  The  Philadelphia  &  R.  R.  R.  Co.,  9 

McGowin  v.  Remington,  12  Pa.  St.  56.  Phila.  (Pa.)  411 ;  s.  c.  4  Brewster  (Pa.), 

5  Robinson  v.  Cathcart,  2  Cranch  C.  C.  563;  Rogers  Locomotive  Works  v.  Erie 
590.  Ry.  Co.,  5  C.  E.  Green  (20  N.  J.  Eq.)(  379. 

6  Union  Mutual  Ins.  Co.  v.  Commercial  But  see  Dinsmore  v.  Louisville,  C.  &  L. 
Mut.  Marine  Ins.  Co.,  2  Curt.  524.  Ry.   Co.,  2   Fed.   R.   465 ;    Dinsmore  v. 

7  Coe  v.  Louisville  &  Nashville  R.  R.  Louisville,  N.  A.  &  C.  R.  R.  Co.,  3  Fed. 
Co.,  3  Fed.  R.  775  ;  McCoy  v.  Cincinnati,  R.  593 ;  Coe  v.  Louisville  &  Nashville 
I.,  St.  L.  &  C.  R.Co.,  13  Fed.  R.  3.  R.  R.  Co.,   3  Fed.    R.  775;   Ormsby  v. 

8  Chicago  &  A.  Ry.  Co.  v.  N.  Y.,  L.  E.  Union  Pacific  R.  R.  Co.,  4  Fed.  R.  706 ; 
&  W.  R.  Co.,  34  Fed.  R.  516.  Texas  Express  Co.   v.  Texas  &  Pacific 

9  Barr,  J.  in  Claybrook  v.  City  of  Ry.  Co.,  6  Fed.  R.  426 ;  Chicago  &  A. 
Owensboro,  23  Fed.  R.  634,  636.  Ry.  Co.  v.  N.  Y.,  L.  E.  &  W.  R.  Co.,  34 

10  Southern  Express  Co.  v.  St.  Louis,     Fed.  R.  516;  C.  S.  M.  Co.  v.  V.  &  G.  H. 
Iron  M.,  i  Southern  Ry.  Co.,  10  Fed.  R.     W.  Co.,  1  Saw.  685. 
210,  869 ;  Smith  v.  Smith,  L.  R.  20  Eq.  500, 


326  INJUNCTIONS.  [CHAP.  XVI. 

usually  specified  therein  ;  for  example,  until  the  coming  in  of 
the  defendant's  answer,  the  hearing  of  the  cause,  the  master's 
report,  or  the  further  order  of  the  court.1  Perpetual,  also  called 
final,  injunctions  are  those  which,  as  their  name  denotes,  perpetu- 
ally restrain  the  defendant  from  the  same  act  or  acts.  Provi- 
sional injunctions  may  be  granted  at  any  time  during  the 
progress  of  a  suit.  Perpetual  injunctions  can  never  be  granted 
except  at  the  time  of  the  entry  of  the  decree.2  The  setting  up 
of  outstanding  terms  can,  it  has  been  said,  only  be  restrained  by 
a  perpetual  injunction.3  Mandatory  injunctions  also  will  very 
rarely  be  granted  before  a  decree.4  "  It  is  a  rule  of  practice  in 
the  circuit  courts  of  the  United  States  not  to  allow  an  injunction 
to  stay  an  ejectment  suit  until  it  can  be  investigated  in  equity, 
unless  a  judgment  be  entered  therein."5 

§  227.  Distinction  between  Common  and  Special  Injunctions.  — 
Injunctions  were  formerly  of  two  kinds,  common  and  special. 
Common  injunctions  were  those  which  were  granted,  as  of 
course,  upon  the  defendant's  default  either  in  appearing  or 
answering,  and  were  only  applicable  to  restrain  proceedings  at 
common  law.1  Special  injunctions  were  those  which  were 
granted,  not  as  a  matter  of  course,  but  upon  the  special  circum- 
stances of  the  case  as  disclosed  hy  the  answer  of  the  defendant 
or  upon  affidavits.2  Common  injunctions,  although  recognized 
by  the  equity  rules,3  have,  it  has  been  held,  been  abolished  by 
the  Revised  Statutes.4  The  learning  upon  the  subject,  which  is 
very  technical,  seems  now,  therefore,  useless,  and  will  not  be 
repeated  here.5 

§  223.  Time  and  Place  of  Applications  for  Interlocutory  Injunc- 
tions.—  An  injunction  may  be  obtained,  at  any  time,  as  well  in 

§  226.  1  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  465  ;  Coe  v.  Louisville  &  Nashville  R.  R. 
1810  ;  Eden  on  Injunctions,  ch.  xv.  Co.,  3  Fed.  R.  775,  and  other  cases  cited 

2  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1903;     under  §  225. 

Adams  v.  Crittenden,  17  Federal  Reporter,  5  Billings,  J.,  in  Heirs  of  Szy  wauski  v. 

42.  Zunts,  20  Fed.  R.  361,  363 ;  citing  Turner 

3  Hylton  v.  Morgan,  6  Ves.  293 ;  Byrne  v.  American  Bapt.  Missionary  Union,  5 
v.  Byrne,  2  Sch.  &  Lef.  537  ;    Barney  v.  McLean,  344. 

Luckett,   1   Sim.  &  S.  419;    Northey  v.  §227.   1  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 

Pearce,  1  Sim.  &  S.  420.  1877. 

*  Camblos  v.  The  Philadelphia  &  R.  3  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1833. 

R.   R,  Co.,  9  Phila.  (Pa.)  411;   s.  c.  4  '  Rule  55. 

Brewster  (Pa.),  563;  Rogers  Locomotive  4  Perry  v.  Parker,   1  W.  &  M.  280; 

&  Maciiine  Works  v.  Erie  Ry.  Co.,  5  C.  Lawrence  i>.  Bowman,  1  McAll.  419. 

E.  Green  (N.J.)  379.     But  see  Dinsmore  5  See  Daniell's  Ch.  Pr.  (2d  Am.  ed  ) 

v.  Louisville,  C.  &  L.  Ry.  Co.,  2  Fed.  R.  1811-1833. 


§  229.]     INJUNCTIONS  NOT  PRAYED  FOR  IN  THE  BILL.        327 

vacation  as  in  term,  and  whether  the  court  be  sitting  or  not,  at 
any  place  within  which  the  judge  granting  it  has  jurisdiction; 
and  at  almost  any  stage  of  the  cause.1  In  England  it  has  been 
held,  that,  in  a  very  extraordinary  case,  an  injunction  may  be 
granted  upon  petition  before  the  filing  of  a  bill  or  the  service  of  a 
subpoena;2  and  in  the  courts  of  the  United  States  an  injunction 
has  been  issued  upon  the  filing  of  the  bill  and  before  service  of 
the  subpoena.3  An  injunction  will  not  usually  be  granted  while 
a  demurrer  or  plea  to  the  bill  is  pending.4  But  in  cases  of  emer- 
gency, the  court  may  order  the  sufficiency  of  such  a  pleading  to 
be  argued  before  the  regular  time  for  such  a  proceeding,  together 
with  the  motion  for  the  injunction;5  or  even  grant  a  stay-order 
without  waiting  for  the  argument.6  Should  a  motion  be  heard 
while  a  demurrer  is  on  the  file  and  undisposed  of,  it  seems  that 
upon  the  hearing  of  the  motion  the  allegations  in  the  bill  will  be 
considered  as  admitted.7  An  application  for  an  injunction  has 
been  refused  because  the  bill  had  been  referred  for  scandal.8 

§  229.  Injunctions  not  prayed  for  in  the  Bill.  —  The  English  rule 
was  that  an  injunction  would  not  issue  against  a  person  not  made 
a  party  to  a  bill  specifically  praying  an  injunction  against  him.1 
And  the  injunction  had  to  be  prayed  for  not  only  in  the  prayer 
for  relief  but  also  in  the  prayer  for  process.2  To  this,  however, 
there  were  four  exceptional  classes  of  cases.  If  the  court  had 
by  its  decree  taken  the  distribution  or  control  of  property  into 
its  own  hands  it  would  prevent  injury  thereto  either  by  the  par- 
ties litigant  or  others,  although  no  injunction  had  been  prayed 
by  the  bill.3  Thus,  in  a  foreclosure  suit  it  would  restrain  waste 
by  the  mortgagor  after  a  decree  for  an  account  ;4  and  after  a  decree 
for  the  administration  of  the  assets  of  a  dead  man,  it  would  enjoin 
a  creditor  not  a  party  to  the  suit  from  proceeding  at  law  against 

§  228.  1  Daniell's  Ch.  Pr.  (5th  Am  ed.)  6  Wardle  v.  Claxton,  9  Simons,  412; 

1663  ;    Kerr    on    Injunctions,    543-545  ;  Maltby  v.  Bobo,  14  Blatchf.  53 ;  Fremont 

Bacon  v.  Jones,  4  Myl.  &  Cr.  433.  v.  Merced  Mining  Co.,  1  McAll.  267. 

2  Mayor  of  London  v.  Bolt,  5  Ves.  129.  7  Bayerque  v.  Cohen,  Mc  All.  1 1 3. 

.8  Scliermerhorn     v.     L'Espenasse,     2  8  Davenport   v.   Davenport,  6  Madd. 

Dall.  369.  251. 

4  Cousins  v.  Smith,  13  Ves.  164  ;  §  229.  »  Daniell's  Ch.  Ft.  (5th  Am. 
Ketchum    v.    Driggs,    6     McLean,    13  ;  ed.)  1614-1617. 

Anon.,   2   Atk.    113;    Daniell's    Ch.    Pr.  -  Wood  v.  Beadell,  3  Simons,  273. 

(5th  Am.  ed.)  1671.  3  Daniell's  Ch.  Pr.  (5th  American  ed.) 

5  Anon.  v.  Bridgewater  Canal  Co.,  9     1614. 

Simons,  378;  Daniell's  Ch.  Pr.  (5th  Am.  4  Wright  v.  Atkyns,  1  V.  &  B.  313. 

ed.)  1671. 


328  INJUNCTIONS.  [chap,  xvl 

the  testator's  or  intestate's  estate  to  satisfy  his  individual  claim, 
provided  that  the  executor  made  an  affidavit  stating  what  assets 
he  had  in  his  hands,  or  had  previously  admitted  their  amount.5  If 
the  suit  were  brought  by  a  legatee,  such  a  statement  or  admis- 
sion was  not  indispensable.6  Secondly,  an  injunction  was  granted 
without  a  bill  being  filed  for  the  express  purpose  of  preventing  a 
plaintiff  from  suing  both  at  law  and  in  equity  at  the  same  time 
and  for  the  same  matter,  and  to  compel  him  to  make  an  election.7 
Thirdly,  an  injunction  could  alwaj's  be  obtained  to  compel  re- 
spect and  enforce  obedience  to  the  decrees  and  orders  of  the 
court.  Thus,  publications  which  were  disrespectful  to  the  court, 
or  which  unfairly  reported  its  proceedings  could  be  enjoined.8  So, 
too,  an  injunction  could  issue  to  restrain  an  action  at  law  to  re- 
cover damages  for  false  imprisonment  under  process  of  contempt 
improperly  issued;9  to  compel  compliance  with  the  terms  and 
spirit  of  a  decree  by  one  who  had  bought  land  under  it ; 10  to 
compel  compliance  with  his  lease  by  the  tenant  of  a  receiver  ; n 
and  to  prevent  an  unauthorized  action  against  a  receiver.12  And, 
fourthly,  there  seems  to  be  a  class  of  cases  not  clearly  defined  in 
which  the  court  granted  an  injunction,  when  without  it  "the  whole 
object  of  the  proceedings  would  be  defeated,"  although  it  was 
not  prayed  for  in  the  bill.13 

§  230.  Special  Practice  of  the  Federal  Courts  in  the  Issue  of  In- 
junctions.—  The  following  regulations  control  the  practice  in 
issuing  injunctions  in  the  Federal  courts.  "  The  prayer  of  the 
bill  shall  ask  the  special  relief  to  which  the  plaintiff  supposes 
himself  entitled,  and  also  shall  contain  a  prayer  for  general  re- 
lief; and  if  an  injunction,  or  a  writ  of  ne  exeat  regno,  or  any 
other  special  order,  pending  the  suit,  is  required,  it  shall  also  be 
specially  asked  for."  l  "  Whenever  an  injunction  is  asked  for  by 
the  bill  to  stay  proceedings  at  law,  if  the  defendant  do  not  enter 

5  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  1617 ;  9  Frowd  v.  Lawrence,  1  J.  &  W.  655  ; 
Paxton  v.  Douglas,  8  Ves.  520  ;  Thomp-  Ex  parte  Clarke,  1  R.  &  M.  563;  Daniell's 
son  v.  Brown,  4  J.  Ch.  (N.  Y.)  619.  Ch.  Pr.  511. 

6  Ratcliffe  v.  Winch,  16  Beav.  576 ;  10  Casamajor  v.  Strode,  1  Sim.  &  Stu. 
Daniell's  Ch.  Pr.  (5th  Am.  ed.)  1617.  381 ;  Kerr  on  Injunctions,  543. 

7  Rogers  v.  Vosburgh,  4  J.  Ch.  (N.Y.)  "  Walton  v.  Johnson,  15  Simons,  352. 
84.  n  Angel  v.  Smith,  9  Ves.  335. 

8  Anon.,  2  Ves.  Sen.  520 ;   Brook  v.  13  Blomfield  v.  Eyre,  8  Beav.  250.     See 
Evans,  29  L.  J.  Ch.  616  ;  Coleman  v.  West  Shain wald  v.  Lewis,  6  Fed.  R.  766. 
Hartlepool  Ry.  Co.,  8  W.  R.  734  ;  Mack-  §  230.  »  Rule  21.     But  see  Shainwald 
ett  v.  Commissioners  of  Heme  Bay,  24  v.  Lewis,  6  Fed.  R.  766. 

W.  R.  845.    But  see  U.  S.  R.  S.  §  725. 


§  230.]  FEDERAL    PRACTICE   AS   TO    INJUNCTIONS.  329 

his  appearance,  and  plead,  demur,  or  answer  to  the  same  within 
the  time  prescribed  therefor  by  these  rules,  the  plaintiff  shall  be 
entitled  as  of  course,  upon  motion,  without  notice  to  such  in- 
junction.2    But  special  injunctions  shall  be  grantable  only  upon 
due  notice  to  the  other  party  by  the  court  in  term,  or  by  a  judge 
thereof  in  vacation,  after  a  hearing,  which  may  be  ex  parte  if  the 
adverse  party  does  not  appear  at  the  time  and  place  ordered. 
In  every  case  where  an  injunction — either  the  common  injunc- 
tion or  a  special  injunction — is  awarded  in  vacation,  it  shall, 
unless  previously  dissolved  by  the  judge  granting  the  same   con- 
tinue until  the  next  term  of  the  court,  or  until  it  is  dissolved  by 
some  other  order  of  the  court."  3     "  Whenever  notice  is  given  of 
a  motion  for  an  injunction  out  of  a  circuit  or  district  court  the 
court  or  judge  thereof  may,  if  there  appears  to  be  danger  of  ir- 
reparable injury  from  delay,  grant  an  order  restraining  the  act 
sought  to  be  enjoined  until  the  decision  upon  the  motion ;  and 
such  order  may  be  granted  with  or  without  security,  in  the  dis- 
cretion of  the  court  or  judge."  4     "  Writs  of  injunction  may  be 
granted  by  any  justice  of  the  Supreme  Court  in  cases  where  they 
might  be  granted  by  the  Supreme  Court ;  and  by  any  judge  of  a 
circuit  court  in  cases  where  they  might  be  granted  by  such  court. 
But  no  justice  of  the  Supreme  Court  shall  hear  or  allow  any  ap- 
plication for  an  injunction  or  restraining  order  in  any  cause  pend- 
ing in  the  circuit  to  which  he  is  allotted,  elsewhere  than  within 
such  circuit,  or  at  such  place  outside  of  the  same  as  the  parties 
may  stipulate  in  writing,  except  when  it  cannot  be  heard  by  the 
circuit  judge  of  the  circuit  or  the  district  judge  of  the  district. 
And  an  injunction  shall  not  be  issued  by  a  district  judge,  as  one 
of  the  judges  of  a  circuit  court,"  except  when  holding  such  court,6 
"in  any  case  where  a  party  has  had  a  reasonable  time  to  apply  to 
the   circuit   court   for   the    writ;    nor   shall    any    injunction    so 
issued  by  a  district  judge   continue  longer  than  to  the  circuit 
court  next  ensuing,  unless  so  ordered   by  the  circuit  court."  6 
It  has  been  held  under  the  foregoing  statutory  provision  that  ab- 
sence or  illness  of  the  circuit  and  district  judges  is  such  a  disability 
as  authorizes  the  circuit  justice  to  hear  and  grant  the  application 

2  Perry  v.  Parker,  1  W.  &  M.  280.  6  Goodyear  Dental  Vulcanite  Co.  v. 

s  Rule  55.  Folsom,  3  Fed.  R.  509. 

4  U.  S.  R.  S.  §  718.     See  Yuenglingr.  6  U.   S.  R.   S.  §   719.     See  Dudley's 

Johnson,  1  Hughes,  607.  Case,  1  Penn.  L.  J.  302 


330  INJUNCTIONS.  [CHAP.  XVI. 

at  a  place  outside  of  the  circuit ; 7  and  that,  if  the  circuit  justice 
as  well  as  the  circuit  and  district  judges  be  absent  from  the  cir- 
cuit, the  application  may  be  heard  and  the  writ  granted  by  any 
justice  of  the  Supreme  Court  in  any  part  of  the  United  States  8 
A  denial  by  the  Circuit  Court  of  an  application  to  dissolve  an 
injunction  granted  by  a  district  judge  may  be  treated  as  an  order 
for  its  continuance.9  But  if  no  order  continuing  it  is  made,  such 
an  injunction  is  dissolved  without  an  order.10 

§  231.  Notice  of  Application  for  Interlocutory  Injunction.  —  As 
a  general  rule,  notice  of  an  application  for  an  injunction  must 
always  be  given  to  the  person  against  whom  the  injunction  is  de- 
sired; but  in  very  pressing  cases  where  the  mischief  sought  to 
be  prevented  was  serious,  imminent,  and  irremediable,  or  where 
the  mere  act  of  giving  notice  to  the  defendant  of  the  intention  to 
make  the  application  might  have  been  of  itself  productive  of  the 
mischief  apprehended,  by  inducing  him  to  accelerate  the  act  in 
order  that  it  might  be  complete  before  the  time  for  making  the 
application  should  have  arrived,  the  courts  have  always  awarded 
injunctions  without  notice.1  On  an  application  for  an  injunction 
without  notice,  the  plaintiff  should  state  in  his  affidavit  the  time 
when  he  first  learned  of  the  threatened  mischief,2  if  the  injunc- 
tion desired  be  to  restrain  the  infringement  of  a  patent  that  he 
believes  that  the  person  to  whom  the  patent  was  issued  was  the 
original  inventor  thereof,  or  that  the  thing  or  process  patented 
was  new  or  had  not  been  introduced  into  public  use  in  the 
United  States  for  more  than  two  years  prior  to  the  application 
upon  which  the  patent  was  issued,3  and  every  material  circum- 
stance connected  with  the  case,  whether  the  same  bears  for  or 
against  his  application.4  If  his  affidavit  be  defective  in  any  of 
these  particulars,  according  to  the  English  practice,  an  injunc- 
tion would  not  be  issued,  or  if  issued,  the  order  for  it  would  be 

7  Searles  v.  Jacksonville,  P.  &  M.  R.  v.  Fairhaven,  8  Gushing  (Mass.),  363; 
R.  Co.,  2  Woods,  621.  Schermerhorn    v.    L'Espenasse,   2   Dall. 

8  United  States  v.  Louisville  &  P.  360;  Yuengling  v.  Johnson,  1  Hughes, 
Canal  Co.,  4  Dill.  000.  607. 

9  Parker  v.  Judges  of  Circuit  Court,  2  Calvert  v.  Gray,  2  Cooper's  Ch.  R. 
12  Wheat.  561.     See  Gray  v.  Chicago,  I.  171  n. 

&  N.  R.  R.  Co.,  1  Woolw.  63.  3  Hill   v.   Thompson,    3    Meriv.    622  ; 

10  Parker   v.    The   Judges   of    Circuit  Sturz  v.  De  La  Rue,  5  Russ.  322,  329  ; 

Court,  12  Wheat.  561 ;  Gray  v.  Chicago,  Sullivan  v.  Redfield,  1  Paine,  441.     See 

I.  &  N.  R.  R.  Co.,  1  Woolw.  63.  also  U.  S.  R.  S.  §§  4886,  4887. 

§  231.  l  Daniell's  Ch.  Pr.  (5th  Am  ed.)  4  Dalglish  v.  Jar  vie,  2  Mac.  &  G.  231. 

1664;    Kerr  on   Injunctions,   545;  Wing 


§  232.]      AFFIDAVITS   UPON  AN  APPLICATION  FOE   INJUNCTION.       331 

discharged.5  "  The  application  for  a  special  injunction  is  very 
much  governed  upon  the  same  principles  which  govern  insur- 
ances, matters  which  are  said  to  require  the  utmost  degree  of 
good  faith,  'uberrima  fides.''  In  cases  of  insurance  a  party  is  re- 
quired not  only  to  state  all  matters  within  his  knowledge,  which 
he  believes  to  be  material  to  the  question  of  the  insurance,  but 
all  which  in  point  of  fact  are  so.  If  he  conceals  anything  that 
he  knows  to  be  material,  it  is  a  fraud  ;  but  besides  that,  if 
he  conceals  anything  that  may  influence  the  rate  of  premium 
which  the  underwriter  may  require,  although  he  does  not  know 
that  it  would  have  that  effect,  such  concealment  entirely  vitiates 
the  policy.  So  here,  if  the  party  applying  for  a  special  injunc- 
tion, abstains  from  stating  facts  which  the  Court  thinks  are  most 
material  to  enable  it  to  form  its  judgment,  he  disentitles  himself 
to  that  relief  which  he  asks  the  court  to  grant."  6  In  the  ab- 
sence of  any  local  rule  upon  the  subject,  the  practice  in  giving 
notice  of  an  application  for  an  injunction,  and  of  proceeding  at 
the  time  when  the  application  is  made,  are  the  same  when  an 
injunction  is  asked  for  as  upon  any  other  interlocutory  appli- 
cation. It  has  been  said,  that  an  application  for  an  interlocutory 
special  injunction,  during  term  and  after  the  beginning  of  a  suit 
and  before  answer,  can  only  be  made  by  motion  ;  but  that  in  va- 
cation a  judge  may  grant  such  an  application  upon  petition.7  The 
usual  practice  is,  however,  to  apply  by  motion.  It  has  been  held 
that  a  mandatory  injunction  can  only  be  granted  upon  notice.8 
It  has  been  further  held  that  the  evidence  which  would  prevent 
the  issue  of  an  interlocutory  injunction  will  be  sufficient  to 
induce  the  court  to  dissolve  one  previously  granted.9 

§  232.  Affidavits  upon  an  Application  for  an  Injunction.  —  The 
affidavits  upon  which  an  injunction  is  sought  are  usually  sworn 
to  by  the  plaintiffs  or  one  of  them,1  but  may  be  sworn  to  by  any 
person  acquainted  with  the  facts,2  in  which  latter  case  the  affi- 
davit should,   it  seems,  state  a  good  reason  for  its  not  being 

8  Dalglish  v.  Jarvie,  2  Mac.  &  G.  231.  9  Gary  v.  Domestic  Springbed  Co.,  26 

6  Tlie  Lord  Commissioner  Mr.  Baron     Fed.  R.  38. 

Rolfe  in  Dalglish  v.  Jarvie,  2  Mac.  &  G.  §  232.  J  Daniell'sCh.Pr.  (5th  Am.ed.) 

231,  243,  244.  1669. 

7  Daniell's  Ch.  Pr.  (5th  Am.ed.)  1666;  2  Lord  Byron  v.  Johnston,  2  Meriv. 
Smitli  v.  Clarke,  2  Dick.  455 ;  Nichols  v.  29 ;  Brooks  &  Hardy  v.  O'Hara  Bros,. 
Kearsly,  2  Dick.  645.  8  Fed.  R.  529. 

8  Chicago,  B.  &  Q.  R.  Co.  v.  Burling- 
ton, C.  R.  &  N.  R.  Co.,  34  Fed.  R.  481. 


332  INJUNCTIONS.  [CHAP.  XVI. 

sworn  to  by  one  of  the  plaintiffs.3  It  is  in  general  necessary 
that  a  plaintiff  should  swear  positively  to  his  title.4  An  injunc- 
tion has  been  refused  when  a  plaintiff  merely  swore  upon  in- 
formation and  belief,  that  he  was  a  remainder-man  under  a 
settlement.5  Upon  an  application  for  an  injunction  to  stay 
waste,  he  must  set  out  his  title  with  particularity.  A  statement 
"  that  the  plaintiff  was  entitled  to  the  fee-simple  of  the  estate  " 
has  been  held  insufficient.6  It  has  been  said  that  if  fraud  is  relied 
upon  as  a  basis  for  an  injunction,  it  must  be  sworn  to  positively, 
and  not  merely  upon  information  and  belief.7  The  plaintiff 
should  also  in  the  affidavits  show  some  actual  violation  of  his 
rights,  or  a  sufficient  ground  to  apprehend  it.8  An  injunction 
will  be  granted  though  the  bill  is  not  sworn  to,  provided  that 
the  accompanying  affidavits  show  a  proper  case  for  it ; 9  but  not 
unless  a  proper  case  is  made  out  by  the  bill  itself.10  If  the 
defendant  in  his  opposing  affidavits  set  up  as  a  defense  new 
matter  in  avoidance  of  the  case  shown  by  the  plaintiff,  the  latter 
may  have  leave  to  file  further  affidavits  in  rebuttal ;  but  gener- 
ally no  subsequent  affidavits  can  be  filed  by  the  defendant.11 
Rebutting  affidavits  may  also  be  used  to  support  any  allegations 
of  the  bill  denied  in  the  answer  except  such  as  state  the  plain- 
tiff's title  to  property  affected  by  the  litigation.12  The  authori- 
ties are  conflicting  as  to  whether  or  not  the  plaintiff's  title,  if 
denied  in  the  answer,  can  be  supported  by  rebutting  affidavits.13 
Documentary  proof,  if  of  equal  force  with  affidavits  can  also 
be  used  in  support  or  in  opposition  to  a  motion  for  an  injunc- 
tion.14 Upon  the  hearing  of  a  motion  for  a  preliminary  injunc- 
tion,  the  rules  of  evidence  are  applied  less  strictly  than  upon 

3  Lord  Byron  v.  Johnston,  2  Meriv.  Leo  v.  Union  Pacific  Ry.  Co.,  17  Fed.  R. 
29;  Spalding  v.  Keely,  7  Simons,  377;  273;  Land  Co.  of  New  Mexico  v.  Elkins, 
Scotson  v.  Gaury,  1  Hare,  99 ;  Kerr  on     20  Fed.  R.  545. 

Injunctions,  548.  u  Day  v.  New  England  Car  Spring  Co., 

4  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  1069.     3  Blatchf.  154. 

6  Davis  v.  Leo,  6  Ves.  784.  12  Brooks  v.  Bicknell,  3  McLean,  250 ; 

6  Whitelegg  v.   Whitelegg,   1    Brown  Farmer  v.  Calvert  Lithographing  Co.,  1 

Ch.  C.  57.  Flippin,  228. 

'  Brooks   &   Hardy  v.  O'Hara  Bros.,  13  Compare  Poor  v.  Carleton,  3  Sum- 

8  Fed.  R.  529.  ner,  70 ;  Goodyear   v.  Mullee,  3  Fisher, 

8  Gibson  v.  Smith,  2  Atk.  182 ;  Jack-  420,  with  Farmer  v.  Calvert  Lithograph- 
son  v.  Cator,  5  Ves.  688  ;  Hanson  v.  Gar-  ing  Co.,  1  Flippin,  228 ;  Parker  v.  Sears,  1 
diner,  7  Ves.  305.  Fisher  Pat.  Cas.   93;   United   States   v. 

9  Smith  v.  Schwed,  6  Fed.  R.  455.  Parrott,  1  McAll.  271. 

10  Cooper  v.  Mattheys,  8  Law  Rep.  14  Schermerhorn  v.  L'Espenasse,  2  Dall. 
413;  Wilson  v.  Stolley,  4  McLean,  272;     360. 


§  233.]  RULES   OF   DECISION.  333 

the  final  hearing  of  the  cause ;  and  consequently  decrees  entered 
in  suits  between  strangers  affecting  the  validity  of  a  patent  in 
question  may  be  offered  in  evidence,  in  support  of  an  application 
for  a  preliminary  injunction,  but  not  in  support  of  an  application 
for  one  that  is  to  be  perpetual.15 

§  233.  Rules  of  Decision  upon  Applications  for  Interlocutory  In- 
junctions.—  The  issue  of  an  interlocutory  injunction  is  never  a 
matter  of  right,  but  rests  in  the  sound  discretion  of  the  court. 
In  order  to  obtain  one,  the  plaintiff  must  show  either  that  there 
is  no  doubt  of  the  wrongful  nature  of  the  act  sought  to  be  en- 
joined,1 or  that  his  own  claims  of  right  have  been  acquiesced 
in  without  question  for  a  long  period  of  time,2  or  that  the  injury 
which  will  result  to  himself  from  a  refusal  of  the  injunction  will 
be  very  great,  and  that  to  the  defendant  from  the  issue  thereof 
very  slight.3  Otherwise,  an  interlocutory  injunction  will  be 
denied  him.4  A  preliminary  injunction  to  restrain  the  infringe- 
ment of  a  patent  will  nearly  always  be  refused,  if  the  defendant 
has  ample  pecuniary  responsibility,  or  gives  security  against  loss 
to  the  plaintiff,  and  is  willing  to  keep  an  account  of  his  manu- 
facture, use  and  sale  of  the  article  claimed  to  be  patented,  and 
the  damages  which  the  plaintiff  will  suffer  can  be  readily  reck- 
oned in  money.5  A  preliminary  injunction  may  also  be  refused 
when  the  plaintiff  has  been  guilty  of  laches  in  applying  for  it  ; 
even  though  his  delay  has  not  been  such  as  to  disentitle  him  to 
a  perpetual  injunction  after  the  hearing.6     If  an  injunction  has 

15  Buck  v.  Hermance,  1  Blatclif.  322 ;  4  Coffeen  v.  Brunton,  5  McLean,  256 ; 

Matthews    v.   Ironclad    Manuf.    Co.,    19  Smith  v.  Cummings,  1  Fisher  Pat.  Cas. 

Fed.  R.  321.  152 ;  French  v.  Brewer,  3  Wall.  Jr.  346; 

§  233.   *  Minturn  v.  Larue,  1  McAll.  Pentlarge   v.    Beeston,   1    Fed.   R.   862 ; 

370 ;   Buchanan   v.    Rowland,   2  Fisher,  Kirby  Bung  Manuf.  Co.  v.  White,  1  Fed. 

341 ;  Doughty  v.  West,  2  Fisher,  553.  R.  604. 

2  Varick  v.  Mayor  of   New  York,  4  6  Foster  v.  Moore,  1  Curt.  279;  Morris 

J.  Ch.   (N.  Y.)  53;    Kirby  Bung  Manuf.  v.  Shelbourne,  8  Blatchf.  266     Gilbert  & 

Co.  v.  White,  1  Fed.  R.  604;   McKay  v.  B.  Manuf.  Co.  v.  Bussing,  12  Blatchf.  426; 

Dibert,  5  Fed.  R.  587  ;   W.  U.  Tel.  Co.  v.  Swift  v.  Jenks,  19  Fed.  R.  641 ;    Hoe  v. 

Union  Pacific  R.  R.  Co.,  3  Fed.  R.  721 ;  Boston  Daily  Advertiser  Co.,  14  Fed.  R. 

Atlantic  &  Pacific  Tel.  Co.  v.  Union  Pa-  914;  U.  S.  Annunciator  Co.  v.  Sanderson, 

cine  Ry.  Co.,  1  Fed.  R.  745.  3  Blatchf.  184.     But  see  Gibson  v.  Van 

»  W.  U.  Tel.  Co.  v.  St.  Jo.  &  W.  Ry.  Dresar,  1  Blatchf.  532  ;  Tracy  v.  Torrey, 

Co.,  3  Fed.  R.  430 ;  W.  U.  Tel.   Co.  v.  2  Blatchf.  275 ;  Parkhurst  v.  Kinsman,  2 

Burlington  &  S.  W.  Ry.  Co.,  11  Fed.  R.  1 ;  Blatchf.  78  ;   Mc Williams  Manuf.  Co.  v. 

American  Union  Tel.  Co.  v.  Union  Pacific  Blundell,  11  Fed.  R.  419. 

Ry.  Co.,  1  McCrary,  188;  Atlantic  &  Pa-  6  Gordon  v.  Cheltenham   Ry.   Co.,   5 

cine  Tel.  Co.  v.  Union  Pacific  Ry.  Co.,  1  Beav.  229  ;  Mundy  v.  Kendall,  23  Fed.  R. 

McCrary,  541.  591 ;  Kerr  on  Injunctions,  22,  23. 


334  INJUNCTIONS.  [CHAP.  XVI. 

been  obtained  by  an  interlocutory  order,  and  it  is  desired  to  con- 
tinue it  provisionally  after  a  hearing,  a  direction  to  that  effect 
should  be  inserted  in  the  interlocutory  decree  then  entered.7 

§  234.  The  Writ  of  Injunction.  —  Immediately  upon  the  entry 
of  an  order  for  an  injunction,  the  party  who  obtained  it  is  entitled 
to  have  the  writ  issued  from  the  clerk's  office  and  served.1  He 
should  attend  to  this  within  a  reasonable  time.  Where  the  writ 
was  tested  six  weeks  after  the  entry  of  the  order  granting  it  and 
was  not  served  till  nearly  a  year  afterwards,  the  court  refused  to 
punish  the  defendant  for  disobedience,  saying  that,  after  the  lapse 
of  so  much  time,  the  plaintiff  should  have  applied  for  leave  to  use 
the  writ.2  Like  all  other  writs  and  processes  issuing  from  the 
courts  of  the  United  States,  writs  of  injunction  must  be  under 
the  seal  of  the  court  from  which  they  issue,  and  signed  by  the 
clerk  thereof.  Those  issuing  from  the  Supreme  Court  or  a  Cir- 
cuit Court  must  bear  teste,  from  the  date  of  such  issue,  of  the 
Chief  Justice  of  the  United  States,  or,  when  that  office  is  vacant, 
of  the  associate  justice  next  in  precedence,  and  those  issuing  from 
a  District  Court  must  bear  teste  of  the  judge,  or  when  that  office 
is  vacant,  of  the  clerk  thereof.3  "  The  orders  pronounced  by  the 
Court  in  cases  of  special  injunctions  before  answer,  have  varied 
at  different  periods.  The  form  most  frequently  adopted  enjoined 
the  party  '  till  further  order.'  In  some  cases  the  injunction  has 
been  till  '  appearance  and  further  order  ; '  in  others  till  '  answer 
and  further  order.'  But  the  form  at  present  used,  and  which  is 
established  by  a  rule  laid  down  b}T  Lord  Eldon,  is  '  till  answer 
or  further  order.'  This  has  been  adopted  as  giving  defendant 
the  liberty  to  move,  if  necessary,  to  dissolve  upon  affidavit,  before 
he  has  answered  the  bill."  4  The  writ  should  contain  a  concise 
description  of  the  particular  acts  or  things  in  respect  to  which 
the  defendant  is  enjoined  ; 5  and  should  conform  to  the  directions 
of  the  order  granting  the  injunction.6  If,  however,  the  writ  is 
broader  than  the  order  warrants,  the  defendant  should  apply  to 
the  court  for  an  order  setting  it  aside  or  modifying  it.7  It 
seems  that  he  is  not  justified  in  disobeying  it  and  raising  the 

i  Darnell's  Ch.  Pr.  (2d  Am.  ed.)  1902.  4  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1805 ; 

§  234.   2  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  Read  v.  Consequa,  4  Wash.  174. 
1816,  1817,  1961.  5  Whipple  v.  Hutchinson,  4   Blatchf. 

2  McCormick  v.  Jerome,  3  Blatchford,  190. 

486.  6  Sickels  v.  Borden,  4  Blatchf.  14. 

3  U.  S.  R.  S.  §§  911,  912.  7  Sickels  v.  Borden,  4  Blatchf.  14. 


§  235.]         DISSOLUTION   OF   INTERLOCUTORY   INJUNCTIONS.  335 

objection  when  a  motion  is  made  for  an  attachment  against  him.8 
It  seems  that  a  writ  is  insufficient  which  designates  the  acts 
sought  to  be  enjoined  by  a  reference  to  the  bill  without  describ- 
ing them.9  The  English  practice  was  to  mention  in  the  writ  a 
money  penalty  to  be  incurred  by  the  defendant  if  he  disobeyed 
it;  but  that  does  not  seem  to  be  necessary  here.10  The  writ 
should  be  addressed  to  the  persons  whom  it  is  desired  to  enjoin.11 
If  the  injunction  is  against  waste,  or  forbids  the  continuance  of 
a  nuisance,  or  some  other  similarly  inequitable  act,  it  is  usually 
addressed  to  the  defendant,  his  servants,  workmen,  and  agents;12 
if  to  restrain  proceedings  in  another  court,  to  the  defendant,  his 
attorneys,  and  agents,13  even  though  the  bill  prays  for  an  injunc- 
tion against  the  defendant  alone.  But  the  latter's  tenants  cannot 
be  thus  enjoined,  unless  they  have  become  such  after  the  com- 
mencement of  the  suit  or  have  been  made  parties  to  it.14  The 
writ  should  be  endorsed  or  subscribed  with  the  name  and  office 
address  of  the  plaintiff's  solicitor,  or  with  the  name  and  residence 
of  the  plaintiff  if  he  appears  in  person.15 

§  235.  Dissolution  of  Interlocutory  Injunctions  in  General.  —  The 
common  injunction  was  dissolved  as  of  course  upon  the  defend- 
ant's putting  in  a  sufficient  answer  to  the  bill.  The  practice  in 
such  a  case  was  for  him  to  obtain  an  order  nisi,  upon  the  return 
of  which  the  injunction  was  always  dissolved,  unless  the  plaintiff 
could  show  that  the  answer  was  insufficient  for  the  purpose  either 
of  defence  or  of  discovery.1  A  special  injunction  can  only  be 
dissolved  by  a  special  motion,  either  in  open  court  or  at  a  special 
hearing  appointed  elsewhere  for  that  purpose  by  a  judge  of  the 
court.2  The  motion  may  be  made  at  any  time  before  decree,3 
even,  it  seems,  before  the  defendant  has  been  served  with  pro- 
cess,4 and  before  he  has  appeared.5     When  a  special  injunction 

8  Rickels  ?-.  Borden,  4  Blatchf.  14.  §  235.   1  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 

9  Whipple  v.  Hutchinson,  4  Blatchf.  1820-1829;  Poor  v.  Carleton,  3  Sumner, 
190.  70;  New  York  v.   Connecticut,  4   Dall. 

w  Low  v.  Hauel,  1  Wall.  Jr.  345.  1,  3,  note  1,  per  Washington,  J. 

11  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1817.  2  Kerr  on  Injunctions,  561  ;  Daniell's 

12  Kerr  on  Injunctions,  559;  Daniell's  Ch.  Pr.  1675;  Wilkins  v.  Jordan,  3  Wash. 
Ch.  Pr.  (5th  Am.  ed.)  1673  ;  Humphreys  C.  C.  226;  Caldwell  v.  Walters,  4  Cranch 
v.  Roberts,   Seton's  Decrees    (4th   ed.),  C.  C  577. 

173.  3  Kerr  on  Injunctions,  500  ;  Daniell's 

«  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  1673.  Ch.  Pr.  (5th  Am.  ed.)  1676  ;  Met.  G.  &  S. 

14  Ilodson  v.  Coppard,  29  Beav.  4  ;  Exchange  r.  Chicago  Board  of  Trade,  15 
Kerr  on  Injunctions,  543.  Fed.  II.  817. 

15  Kerr  on  Injunctions,  559 ;  Daniell's         4  Shields  v.  McChmg,  6  W.  Va.  79. 
Ch.  Pr.  (5th  Am.  ed.)  1G74.  6  Menzies  v.  Rodrigues,  1  Price,  92. 


336  INJUNCTIONS.  [CHAP.  XVI. 

has  been  granted  against  several  defendants,  any  of  them  may 
move  to  dissolve  it  as  against  himself;  but  he  should  in  that 
case  serve  the  others  as  well  as  the  plaintiff  with  a  notice  of  his 
motion.6  In  one  case  after  answer,  a  notice  left  at  the  office  of 
the  solicitor  for  the  plaintiff  during  his  absence  from  the  city 
three  days  before  the  motion  was  held  sufficient."  If  the  motion 
to  dissolve  is  made  before  answer,  it  must  be  supported  by  affi- 
davits or  documentary  proof  contradicting  the  statements  upon 
which  the  injunction  was  obtained,8  unless  the  defendant  can  show 
that  it  is  plain  upon  the  face  of  the  plaintiff's  bill  and  affidavits 
that  he  was  not  entitled  to  the  injunction.9  When  the  injunction 
has  been  irregularly  issued,  the  defendant  should  move  to  dis- 
charge the  order  granting  it.10  If  he  should  move  to  dissolve  it, 
he  might  be  held  to  have  by  so  doing  recognized  its  regularity.11 
It  has  been  held  that  after  a  demurrer  put  in  by  him  to  the  bill 
has  been  overruled  a  defendant  can  only  move  to  dissolve  by 
leave  of  the  court ;  which  was,  in  one  case,  only  granted  upon 
his  affidavit  that  the  demurrer  was  not  interposed  for  delay,  and 
his  giving  security  to  pay  all  damage  to  the  plaintiff  thereby 
caused.12  Where  the  application  for  dissolution  was  made  after 
answer,  it  was  originally  thought  that  the  plaintiff  could  not 
show  that  any  of  the  allegations  therein  contained  were  false  ; 13 
but  that  doctrine  has  been,  in  this  country  at  least,  exploded,14 
and  it  is  well  settled  that  the  plaintiff  can  not  only  dispute  the 
truth  of  such  allegations,  whether  they  are  positive  or  negative, 
but  is  at  liberty  to  file  counter  affidavits  in  reply  to  new  matter 
contained  in  the  defendant's  affidavits  or  answer.15  When  a 
stay-order  has  been  made,  and  simultaneous  applications,  by  the 
defendant  to  discharge  the  stay-order,  and  by  the  plaintiff  for  an 
injunction,  are  heard  together,  the  plaintiff  has  the  right  to  open 

6  Thompson  v.  Geary,  5  Beav.  131 ;  12  Woodworth  v.  Edwards,  3  W.  &  M. 

Kerr  on  Injunctions,  564.    But  see  Dan-  120. 

iell's  Ch.  Pr.  (5th  Am.  ed.)  1676,  note  1.  13  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  1676, 

1  Caldwell  v.  Walters,  4  Cranch  C.  C.  note  4. 

677.  14  Poor    v.    Carleton,   3   Sumner,  70  ; 

8  Daniell's  Ch.Pr.  (5th  Am.  ed.)  1676;  United  States  v.  Parrott,  1  McAll.  271; 
Young  v.  Grundy,  6  Cranch,  51.  Orr  v.  Littlefield,  1  W.  &  M.  13 ;    Orr  v. 

9  Hudson  v.  Maddison,  12  Simons,  416 ;  Merrill,  1  W.  &  M.  376 ;  Clum  v.  Brewer, 
Kidwell  v.  Masterson,  3  Cranch  C.  C.  52.  2  Curt.  506. 

w  Angier  v.  May,  3  W.  R.  330;  Dan-         15  Day  v.  New  England  Car  Spring  Co., 

iell's  Ch.  Pr.  (5th  Am.  ed.)  1676;  Kerr  3  Blatchf.  154 ;  Daniell's  Ch.  Pr.  (5th  Am. 
on  Injunctions,  564.  ed.)  1676;  Shoemaker  c.  Nat.  Mechanics' 

11  Vipan    v.  Mortlock,  2   Merir.  476 ;     Bank,  1  Hughes,  101. 
Kerr  on  Injunctions,  564. 


§  236.]  DISSOLUTION   OF   INJUNCTIONS.  337 

and  close  the  argument.16  If  upon  the  application  to  dissolve  an 
injunction  the  court  is  not  satisfied  that  the  plaintiff  is  entitled 
to  retain  it,  it  will  dissolve  the  injunction,  and  may  then  direct 
an  issue,  an  action  at  law,  or  a  reference  before  the  hearing.17 
If,  however,  it  is  satisfied  that  the  plaintiff  is  entitled  to  the  writ, 
the  court  will  direct  the  injunction  to  be  continued  until  the 
hearing.18  Where  the  court  dissolves  the  injunction  upon  the 
ground  that  it  appears  upon  the  face  of  the  bill  that  the  plaintiff 
is  not  entitled  thereto,  and  that  is  the  only  relief  prayed  for  by 
him, it  cannot  at  the  same  time  dismiss  the  bill;  for  the  plaintiff 
has  still  the  right  to  bring  the  suit  to  a  hearing.19  If  the  question 
is  left  in  doubt  upon  the  motion  to  dissolve,  it  seems  that  the 
motion  will  be  denied.20  The  ambiguity  of  the  order  granting 
the  injunction  is  sufficient  ground  for  its  dissolution  or  modifica- 
tion.21 The  defendant's  delay  in  moving  to  dissolve  the  injunc- 
tion may  deprive  him  of  his  right  to  have  it  dissolved.22  When 
a  special  injunction  has  been  granted  after  a  full  hearing,  it  will 
not  be  dissolved  except  on  new  evidence.23  It  has  been  held 
that  a  preliminary  injunction  will  not  be  dissolved  after  answer 
upon  grounds  shown  by  affidavits,  which,  from  their  not  having 
been  set  up  in  the  answer,  cannot  be  used  at  the  hearing  of  the 
whole  case.24  A  judge  will  very  rarely  dissolve  an  injunction 
granted  by  one  of  his  judicial  brethren.25  After  an  injunction  has 
been  dissolved,  if  evidence  subsequently  taken  shows  that  it  was 
properly  issued,  it  may  be  issued  anew.26  The  dissolution  of  an 
ex  parte  injunction  on  account  of  a  suppression  of  material  facts 
does  not  preclude  the  plaintiff  from  applying  for  another  injunc- 
tion on  the  merits.27 

§  236.    Dissolution    of  Injunctions  for   Causes    arising    after  their 
Issue.  —  An  injunction  may  also  be  dissolved  if  the  plaintiff  is 

16  Fraser  v.  Whalley,  2  Hem.  &  M.  10.  ^  Dalglish  v.  Jarvie,  2  Macn.  &  G.  231. 

17  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1897.  22  Florence    Sewing   Machine   Co.    v. 

18  Packington  v.  Packington,  1  Dickens,  Grover  &   Baker  Sewing   Machine  Co., 
101 ;  Daniell's  Ch.  Pr.  (5th  American  ed.)  110  Mass.  1  ;  Kerr  on  Injunctions,  565. 
1678.  23  Woodworth  v.  Hall,  1  W  &  M.  389. 

19  Brooke  v.  Clarke,    1    Swanst.   550 ;  2i  Union    Paper   Bag  Machine  Co.   v. 
Blow  >■.  Taylor,  4  Hen.  &  Munf.  (Va.)  159.  Newell,  11  Blatchf.  549. 

2J  Cooper  v.  Mattheys,*5  Penn.  L.J.  38  ;  25  Cole  Silver  Mining  Co.  v.  Virginia  & 

8.  c.  8  Law  Rep.  413 ;   Fisher  v.  Lord,  6  Gold  Hill  Water  Co.,  1  Saw.  685 ;  Pres- 

West  L.  J.  137  ;   Woodworth  v.  Hall,   1  ton  v.  Walsh,  10  Fed.  R.  315. 

W.  &  M.  389 ;  Woodworth  v.  Rogers,  3  2G  Tucker  v.  Carpenter,  Hempst.  440. 

W.  &  M.  L35;   Sparkman   v.  Higgins,   1  27  Fitch  v.  Rochfort,  18  L.  J.  Ch.  458; 

Blatchf.  205.  Kerr  on  Injunctions,  564. 

22 


338  INJUNCTIONS.  [chap,  xvl 

guilty  of  gross  and  inexcusable  delay  in  taking  testimony  or  in 
bringing  the  cause  to  a  hearing  ; l  and  in  general  if  from  a  change 
of  circumstances  its  continuance  would  no  longer  serve  any  useful 
purpose.2  The  subsequent  passage  of  an  act  of  Congress  legaliz- 
ing a  structure  which  has  been  enjoined  as  a  nuisance  is  a  reason 
for  the  dissolution  of  an  injunction.3  It  has  been  held  that  an 
injunction  staying  proceedings  at  law  against  a  bankrupt  is  dis- 
solved ipso  facto  by  his  discharge,4  but  remains  unaffected  by 
his  delay  in  applying  for  his  discharge.5  The  expiration  of  a 
patent  does  not  without  the  order  of  the  court  dissolve  an  in- 
junction against  its  infringement.6  An  injunction  is  not  dissolved 
by  an  amendment  of  the  bill7  unless  the  amendment  substan- 
tially changes  the  cause  of  action.8  But  it  is  customary  to  in- 
clude in  the  order  allowing  an  amendment  a  direction  that  it  be 
"  without  prejudice  to  the  injunction."  The  allowance  of  a 
demurrer  to  the  whole  bill  puts  an  end  to  an  injunction  which 
had  previously  been  obtained;9  but  leave  will  be  given  to 
amend  without  prejudice  to  the  injunction,  when  the  demurrer 
is  allowed  on  account  of  a  defect  in  form.10  "  The  allowance  of 
a  plea  does  not  dissolve  an  injunction.  There  may  be  some 
equity  shown  to  continue  it.  An  order  for  its  dissolution  must 
be  obtained."  n  An  injunction  is  not  dissolved  by  an  abatement 
or  the  suits  becoming  defective,  but  the  defendant  must,  if  he 
wishes  to  be  freed  from  the  restraint  thereby  imposed,  move  that 
the  plaintiff  or  his  representatives  revive  within  a  limited  time, 
or  that  the  injunction  ma}'  be  dissolved.12 

§  237.  The  Imposition  of  Terms  upon  the  Issue,  Denial,  Dissolu- 
tion, or  Continuance  of  an  Injunction.  —  As  the  issue  of  a  special 
injunction  is  in  its  discretion,  the  court  may  impose  terms  upon 

§  236.   1  Read  v.  Consequa,  4  Wash.  Co.,  2  Beav.  253.     But  see  Sharp  v.  Ash- 

C.  C.  174;  Bradley  v.  Reed,  12  Pitts.  L.J.  ton,  3  V.  &  B.  144. 

65;  Schermehorn  v.  L'Espenasse,  2  Dall.  8  Attorney- General     v.     Marsh,    16 

360;  In  the  Matter  of  Schwarz,  14  Fed.  Simons,  572;  Kerr  on  Injunctions,  566. 
R.  787.  9  Schneider  v.  Lizardi,  9  Beav.  461, 

2  In  re  Jackson,  9  Fed.   R.  493  ;    Re  468 ;  Kerr  on  Injunctions,  565. 

Pitts,  9  Fed.  R.  542.  u  Rawlings  v.  Lamhert,  1  J.  &  H.458; 

3  Baird   v.   Shore    Line    Ry.    Co.,   6    Kerr  on  Injunctions,  565,  566. 
Blatchf.  461.  ll  Kerr  on  Injunctions,  566;  Philips  v. 

4  In  re  Thomas,  3  N.  B.  R.  7.  Langhorn,    Dickens,    148  ;    Ferrand    v. 
6  In  re  Schwarz,  14  Fed.  R.  787,  789.         Hamer,  4  M.  &  C.  143. 

6  American  Diamond  Rock  Boring  Co.  Vi  Chowick  v.  Dimes,  3  Beav.  290  ;  Lee 
v.  Rutland  Marble  Co.,  2  Fed.  R.  356.  v.  Lee,  1  Hare,  622  ;  Chester  v.  Life  Asso- 

7  Read  v.  Consequa,  4  Wash.  C.  C.  1 74 ;  ciation  of  America,  4  Fed.  R.  487. 
Warburton  v.  London  &  Blackball  Ry. 


§  237.]  IMPOSITION   OF  TEEMS.  339 

the  plaintiff  or  defendant  when  granting  or  refusing  the  issue, 
dissolution,  or  continuance  of  the  same.1  The  usual  terras  are 
the  giving  of  a  bond  or  undertaking  with  good  security  to  in- 
demnify the  other  party  against  all  loss  that  may  result  from  the 
issue  or  withholding  of  the  injunction.2  In  some  instances  the 
court  has  withheld  an  injunction  to  restrain  an  infringement  of 
a  patent  or  copyright  upon  the  defendant's  merely  undertaking 
to  keep  an  account  of  the  sales  made  by  him  during  the  pen- 
dency of  the  suit.3  Sometimes  the  terms  are  that  the  defen- 
dant shall  give  an  undertaking  to  abide  by  the  farther  order  of 
the  court.4  An  injunction  will  never  be  issued  to  restrain  the 
collection  of  State  taxes  unless  the  plaintiff  first  pays  "  what  is 
conceded  to  be  due,  or  what  can  be  seen  to  be  due  on  the  face 
of  the  bill,  or  be  shown  by  affidavits,  whether  conceded  or 
not." 5  Whether  or  not,  if  the  court  upon  the  final  hearing 
decides  after  a  preliminary  injunction  has  been  denied  that 
a  perpetual  one  should  issue,  or  dissolves  an  injunction  previ- 
ously granted,  the  finally  successful  party  can  have  his  dam- 
ages assessed  and  the  bond  or  undertaking  given  as  security 
enforced  by  the  court,  or  must  bring  an  action  at  law,  is 
under  the  authorities  an  open  question.  Mr.  Justice  Curtis  held 
at  circuit  that  he  must  sue  at  law;6  but  a  recent  opinion  of  the 
Supreme  Court,  although  expressly  reserving  the  question, 
seems  to  intimate  that  a  court  of  equity  has  the  power  to  assess 
the  damages  and  enforce  payment  of  the  bond.7  The  latter 
view  seems  more  in  harmony  with  the  general  principles  gov- 
erning equity  practice,8  and  has  been  adopted  by  Judge  Drum- 
mond  in  a  recent  case  in  a  Circuit  Court.9  Such  a  court  has, 
at  all  events,  the  power  to  absolve  from  all  liability  the  per- 
sons held  by  the  bond,  and  it  would  take  a  very  strong  case 

§  237.  i-  Russell  v.  Farley,  105  U.  S.  436;  Jones  v.  Great  Western  Ry.  Co.,  1 

433.  [English]  Railway  Cases,  684. 

2  Russell   v.  Farley,   105  U.   S.   433 ;  6  state  Railroad  Tax  Cases,  92  U.  S. 

Kirby  Bung  Manuf.  Co.  v.  White,  1  Fed.  575,  617 ;    National  Bank  v.  Kimball,  103 

R.  604  ;  Northern  Pacific  R.  R.  Co.  v.  St.  U.  S.  732  ;    Parmlcy  v.  Railroad  Compa- 

Paul,  Minneapolis,  &  Manitoba  R.  R.  Co.,  nies,  3  Dill.  25;    Huntington  v.  Palmer,  8 

2  McCrary,  260  ;  s.  c.  4  Fed.  R.  688.  Fed.  R.  449. 

8  Furbush  v.  Bradford,  1  Fisber's  Pat.  6  Merryfleld  v.  Jones,  2  Curt.  306.    See 

Cas.  317  ;  McCrary  v.  Penn.  Canal  Co.,  also  Bein  v.  Heath,  12  How.  168. 
5  Fed.  R.  367  ;  Kerr  on  Injunctions,  29,  7  Russell  v.  Farley,  105  U.  S.  433. 

30.  8  See  Moore  v.  Moore,  25  Beav.  8; 

*  Attorney-General   v.   Manchester  &  Sugden  v.  Hull,  28  Beav.  263. 
Leeds  Ry.  Co.,  1  [English]  Railway  Cases,  9  Lea  v.  Deakin,  13  Fed.  R.  514. 


340 


INJUNCTIONS. 


[CHAP.  XVI. 


to  induce  an  appellate  court  to  interfere  with  such  a  decision 
by  it.10 

§238.  Perpetual  Injunctions. — Perpetual  injunctions  can  only 
be  granted  at  the  entry  of  a  decree.1  It  is  irregular  to  grant  one 
upon  affidavits.2  In  patent,  trademark  and  copyright  cases,  how- 
ever, they  are  often  granted  by  an  interlocutory  decree  which  also 
directs  a  reference  to  a  master  for  an  accounting  ; 3  but  the  court 
has  the  power  to  suspend  the  injunction  until  an  appeal  can  be 
taken.4  A  perpetual  injunction  is  either  originally  granted,  or 
continued.  They  may  be  granted  originally  in  all  cases  in  which 
temporary  injunctions  might  have  been  granted,  and  also  to  re- 
strain the  setting  up  of  outstanding  terms  when  it  would  be  in- 
equitable to  do  so.5  In  order  to  obtain  a  perpetual  injunction,  it 
is  not  necessary  that  a  provisional  injunction  should  have  been 
asked  for.6  For  after  the  commencement  of  a  suit  seeking  to  pre- 
vent an  act  upon  the  defendant's  part,  he  is  said  to  proceed  at  his 
peril,  and  if  the  court  finally  decides  in  favor  of  the  plaintiff  it 
may  order  him  to  undo  the  result  of  his  acts  since  he  first  had 
notice  of  the  suit.7  A  perpetual  injunction  may  be  obtained  in 
a  case  where  a  preliminary  injunction  has  been  asked  for  and 
refused  or  obtained  and  dissolved.8  If,  however,  the  plaintiff 
has  not  previously  obtained  a  preliminary  injunction  and  at 
the  hearing  fails  to  make  out  a  clear  title,  he  usually  will  not  be 
allowed  to  use  the  facts  proved  by  him,  as  evidence  of  a  prima 
facie  case,  entitling  him  then  to  a  temporary  injunction  till  he 
can  establish  his  case  beyond  a  doubt ; 9  unless  indeed,  the  in- 
junction sought  be  one  that  is  never  granted  before  a  hearing.10 


10  Russell  v.  Farley,  105  U.  S.  433.  See 
also  Deakin  v.  Stanton,  3  Fed.  R.  435; 
Grundy  v.  Young,  2  Cranch  C.  C.  114; 
Bentley  v.  Joslin,  Hempst.  218. 

§  238.  i  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1903. 

2  Adams  v.  Crittenden,  17  Fed.  R.  42. 

8  Rumf  ord  Chemical  Works  v.  Hecker, 
11  Off.  Gaz.  330  ;  Brown  v.  Deere,  6  Fed. 
R.  484 ;  s.  c.  2  McCrary,  425. 

4  Barnard  v.  Gibson,  7  How.  650,  658 ; 
Potter  v.  Mack,  3  Fisher,  428 ;  Brown  v. 
Deere,  6  Fed.  R.  487;  Munson  v.  The 
Mayor,  19  Fed.  R.  313. 

5  Askew  v.  Poulterers'  Co.,  2  Ves.  Sen. 
89;  Duke  of  Buckingham  i».  Duchess  of 
Buckingham,  2  Eq.  Cases  Abr.  527. 


e  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1900. 
See  also  Baily  v.  Taylor,  1  R.  &  M.  73. 

7  Charles  River  Bridge  v.  Warren 
Bridge,  6  Pick.  (Mass.)  376;  Wing  v. 
Fairhaven,  8  Cush.  (Mass.)  363  ;  Winslow 
v.  Nayson,  113  Mass.  411 ;  Smith  v.  Day, 
L.  R.  13  Ch.  D.  651. 

8  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1900  ; 
Baily  v.  Taylor,  1  R.  &  M.  73  ;  Bacon  v. 
Spottiswoode,  1  Beav.  382 ;  Bacon  v. 
Jones,  4  M.  &  C.  433 ;  Tucker  v.  Carpen- 
ter, Hempst.  440. 

s  Bacon  v.  Spottiswoode,  1  Beav.  382  ; 
8.  c.  on  appeal,  sub  nom.  Bacon  v.  Jones, 
4  M.  &  C.  433.  438 ;  Daniell's  Ch.  Pr. 
(2d  Am.  ed.)  1901. 

i°  Daniel's  Ch.  Pr.  (2d  Am.  ed.)  1901. 


§  238.]  PEEPETUAL  INJUNCTIONS.  341 

The  most  common  kinds  of  perpetual  injunctions,  however,  are 
those  which  are  made  by  continuing  or  extending  and  making 
perpetual  preliminary  injunctions  at  the  hearing.  This  can  only 
be  done  by  inserting  a  direction  to  that  effect  in  the  decree.11 
In  order  to  support  a  decree  for  a  perpetual  injunction,  it  has 
been  said  that  the  court  requires  that  there  should  be  nothing 
like  a  doubt  in  the  case.12  The  granting  of  such  an  injunction 
is  in  the  discretion  of  the  court,  and,  like  a  provisional  injunc- 
tion, it  may  be  allowed 13  or  refused  u  upon  terms.  On  account 
of  the  weight  as  a  precedent  given  to  a  decree  for  a  perpetual 
injunction  in  a  patent  case,  the  court  may  refuse  to  grant  one 
when  the  case  has  been  compromised  and  the  defendant 
abandons  it  at  the  hearing.15 

"  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1902 ;  Iron  M.,  &  Southern  Ry.  Co.,  10  Fed.  R. 

Gardner  v.  Gardner,  87  N.  Y.  14.  210 ;  s.  c.  10  Fed.  R.  869. 

12  Whittingham  v.  Wooler,  2  Swanst.  H  McCrary  v.  Penn.  Canal  Co.,  5  Fed. 
428  n. ;  Troy  &  B.  R.  R.  Co.  v.  Boston,  H.  R.  367  ;  Brown  v.  Deere,  Mansur,  &  Co.,  6 
T.  &  W".  Ry.  Co.,  86  N.  Y.  107;  Daniell's  Fed.  R.  487. 

Ch.  Pr.  (2d  Am.  ed.)  1900.  1S  Hayes  v.  Leton,  5  Fed.  R.  521. 

13  Southern  Express  Co.  v.  St.  Louis, 


342  EECEIVEKS.  [CHAP.  XVII. 


CHAPTER   XVII. 

RECEIVERS. 

§  239.  Definition  of  Receiver.  —  A  receiver  is  an  officer  appointed 
b}r  a  court  of  equity  to  assume  the  custody  of  property  pending 
litigation  concerning  the  same.  In  England  the  term  is  usually 
applied  only  to  those  appointed  to  receive  the  rents  and  profits 
of  land  and  to  get  in  outstanding  property ;  and  one  selected  to 
carry  on  or  superintend  a  trade  or  business  is  usually  denomi- 
nated "  a  manager,"  or  "  a  receiver  and  manager."  1  But  in  the 
United  States,  both  classes  of  officers  are  called  receivers.  The 
Revised  Statutes  authorize  the  Comptroller  of  the  Currency  to 
appoint  in  certain  cases  a  receiver  of  a  national  banking  associa- 
tion, whose  powers  and  duties  are  in  many  respects  analogous  to 
those  of  a  receiver  appointed  by  a  court  of  equity.2  But,  as  the 
learning  upon  this  subject  does  not  concern  the  practice  of  courts 
of  equity,  it  will  not  be  considered  here. 

§  240.  When  Receivers  will  be  Appointed.  —  A  receiver  may  be 
appointed  to  provide  for  the  safety  of  property  pending  litigation 
to  determine  the  title  to  the  same ;  to  preserve  property  in  danger 
of  being  dissipated  or  destroyed  by  those  having  the  legal  title 
to  its  possession ;  to  preserve  the  property  of  infants  during  their 
minority,  when  they  have  no  guardian  and  their  parents  are  dead 
or  unfit  to  be  trusted  with  it ;  to  preserve  the  property  of  idiots 
and  lunatics  when  it  is  impossible  to  obtain  a  proper  person  as 
committee  ;  and  when  the  appointment  is  authorized  by  statute.1 
A  receiver  may  be  appointed  to  provide  for  the  safety  of  prop- 
erty pending  litigation ;  to  determine  the  title  to  the  same, 
whether  the  litigation  is  in  a  court  of  equity,2  of  probate,3  of 

§  239.   !  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  §  240.   1  Kerr  on  Receivers   (2d  Am. 

2006.  ed.)  3. 

2  See  U.  S.  R.  S.  §§  5234-5237  ;  Laws  of  2  Davis  v.  The  Duke  of  Marlborough, 

1876,  ch.  156  (19  St.  at  L.  63);  1st  Supp.  2    Swanst.    108;     Curling    v.     Marquis 

U.  S.  R.  S.  216  ;  24  St.  at  L.  ch.28,  p.  8  ;  Townshend,  19  Ves.  628. 

Price  v.  Abbott,  17  Fed.  R.  500 ;  and  §  15  8  King  v.   King,   6  Ves.  172  ;  Matter 

of  this  work.  of  Colvin,  3  Md.  Ch.  Dec.  279  ;    Kerr  on 

Receivers,  (2d  Am.  ed.)  28-37. 


§  240.]  WHEN    RECEIVERS   WILL   BE   APPOINTED.  343 

bankruptcy,4  in  a  foreign  court,5  and  sometimes,  though  very 
rarely,  in  a  court  of  law.6  By  far  the  must  ordinary  cases  where 
a  receiver  is  appointed  are,  however,  suits  in  equity  to  obtain 
equitable  assets,  for  the  foreclosure  of  a  mortgage,  and  for  the 
dissolution  or  winding  up  of  the  affairs  of  a  partnership.  It  was 
the  English  rule  that  a  receiver  could  not  be  appointed  at  the 
suit  of  a  first  mortgagee,  since  he  had  it  in  his  power  to  take  pos- 
session himself.7  In  this  country,  however,  receivers  are  fre- 
quently appointed  in  such  a  case.8  As  a  general  rule,  a  receiver 
of  the  effects  of  a  partnership  will  not  be  appointed  unless  the 
bill  prays  a  dissolution  and  shows  a  proper  case  for  the  same.9 
But  it  has  been  said  that  "  where  suits  have  been  instituted  to  com- 
pel partners  to  act  according  to  the  provisions  of  instruments  into 
which  they  have  entered ;  in  such  cases,  the  Court  will  take  care 
that  the  decree  shall  not  be  defeated  by  anything  to  be  done  in  the 
mean  time,  and  will  appoint  a  Receiver  to  protect  the  property."  10 
Receivers  may  be  appointed  to  preserve  property  in  danger  of 
being  dissipated  or  destroyed  by  those  having  the  legal  title  to 
its  possession,  at  the  suit  of  beneficiaries,  legatees,  next  of  kin, 
or  creditors,  when  a  trustee,11  executor,12  or  administrator13  is 
insolvent  and  has  not  given  bonds,  or  is  guilty  of  misconduct ; 
and  at  the  suit  of  remainder-men,  when  the  holder  of  the  par- 
ticular estate  is  guilty  of  voluntary  or  permissive  waste,14  or 
improperly  refuses  to  renew  leaseholds.15  In  the  case  of  trus- 
tees, the  court  will  thus  interfere  whether  the  trust  is  express  or 

4  Sedgwick  v.  Place,  3  N.  B.  R.  35;  Darnell's  Ch.  Pr.  (2d  Am.ed.)  I960, 1967; 
Alabama   &   Chattanooga   R.  R.   Co.   v.  Kerr  on  Receivers  (2d  Am.  ed.),  93. 
Jones,  5  N.  B.  R.  97  ;  Keenan  v.  Shannon,  10  Darnell's  Ch.  Pr.  (2d  Am.  ed.)  1967 ; 
9  N.  B.  R.  441  ;  Kerr  on  Receivers  (2d  Const  v.  Harris,  T.  &  R.  49G. 

Am.  ed.)  110-113.  u  McCosker    v.    Brady,    1   Barb.    Ch. 

5  Transatlantic  Co.  v.  Pietroni,  Johns.  (N.  Y.)  329;   Brodie  v.  Barry,  3  Meriv. 
604.  695 ;    Janeway   v.   Green,    16  Abb.    Pr. 

6  Talbot  t>.  Scott,  4  K.  &  J.  96;  Fin-  (N.  Y.)  215,  note. 

gal   v.   Blake,   2  Molloy,   50;    Whitney  12  Utterson   v.    Mair,  2    Ves.   Jr.  95; 

v.    Buckman,    26    Cal.    447  ;    Ilorton    v.  Scott  v.  Becher,  4  Price,  346.     But  see 

White,  84  N.  C.  297  ;  Jefferys  v.  Smith,  1  Gladdon  v.  Stoneman,  1   Madd.  143  n.  ; 

J.  &  W.  298  ;  Kerr  on  Receivers  (2d  Am.  Langley  v.  Hawk,  5  Madd.  4G  ;  Kerr  on 

ed.),  114-127.  Receivers  (2d  Am.  ed.),  20. 

7  Berney  v.  Sewell,  1  J.  &  W.  647.  13  Hervey   v.   Fitzpa trick,    Kay,   421 ; 

8  See,   for  example,   Stanton  v.    Ala-  Ware  v.  Ware,  42  Ga.  408. 

bama  &  Chattanooga  R  R.  Co.,  2  Woods,  "  Vose  v.  Reed,  1  Woods,  647,  050. 

506;  Allen?;.  The  Dallas  &  Wichita  R.  K.  15  Bennett  v.  Colley,  2  M.  &  K.  225; 

Co.,  3  Woods,  316,  326.  s.  c.  5  Simons,  181,  192;  Lord  Montford  v. 

9  Goodman   v.  Whitcomb,  1  J.  &  W.  Lord  Cadogan,  17  Ves.  485. 
589  ;   Oliver   v.  Hamilton,  2  Anst.  453 ; 


344  RECEIVERS.  [CHAP.  XVII. 

implied.16  A  receiver  may  be  appointed  over  the  property  of  an 
infant,17  when  the  latter  has  no  guardian,  or  his  guardian  is  insol- 
vent or  has  been  guilty  of  misconduct18  and  has  no  parents,  or 
his  parents  are  unfit  to  be  entrusted  with  the  care  of  his  estate.19 
Receivers  may  be  appointed  over  the  property  of  idiots  and  luna- 
tics when  no  person  can  be  found  disposed  to  act  as  committee  ; w 
or,  it  seems,  where  the  committee  is  infirm,  or  the  management 
of  the  estate  is  very  onerous,  or  the  committee  lives  far  from  the 
estate.21  The  statutes  of  the  several  States  authorize  the  appoint- 
ment of  a  receiver  in  numerous  cases,  especially  in  providing  for 
the  dissolution  of  corporations.  The  statutes  of  the  United 
States  authorize  the  appointment  of  a  receiver  of  a  national 
bank  by  the  Comptroller  of  the  Currency  in  certain  specified 
cases.22  Until  the  Comptroller  has  acted,  however,  a  court 
of  the  United  States  may  appoint  a  receiver  of  the  assets  of  such 
a  corporation.23  Though  after  the  appointment  by  the  Comptroller 
of  such  a  receiver,  it  is  doubtful  whether  a  court  of  the  United 
States  would  appoint  another:  and  after  the  appointment  of  one 
by  a  court  of  competent  jurisdiction,  it  is  doubtful  whether  the 
Comptroller  of  the  Currency  could  thus  interfere.24  Indepen- 
dently of  statutory  authority  a  court  of  equity  will  ordinarily 
appoint  a  receiver  of  the  property  of  a  corporation  in  only  seven 
cases : 25  firstly,  at  the  suit  of  mortgagees  or  other  holders  of 
liens  upon  it;26  secondly,  at  the  suit  of  judgment  creditors 
seeking  equitable  assets;27  thirdly,  at  the  suit  of  persons  inter- 
ested, whether  as  stockholders  or  creditors  in  the  property, 
where  there  is  a  breach  of  duty  by  the  directors,  and  an  actual 

16  Pritchard  v.  Fleetwood,  1  Meriv.  54;  114,  citing  Re  Birch,  Shelf,  on  Lun.  146; 

Daniell's  Ch.  Pr.  (5th  Am.  ed.),  1724.  Re  Seaman,  Shelf,  on  Lun.  146. 

"  Hicks  v.  Hicks,  3  Atk.  277;  Union  22  U.  S.  R.  S.  §§  5141,5191,  5195,  5201, 

Trust  Co.   v.   Illinois   Midland  Railway  5205,  5234,  5235,  5236  ;  Laws  of  1876,  ch. 

Co.,  117  U.  S.  434;  Sage  v.  Memphis  &  156  (19  St.  at  L.  p.  63) ;  1st  Supp.  U.  S. 

Little  Rock  R.   R.  Co.,  125  U.  S.  361 ;  R.  S.  p.  216. 

Kerr  on  Receivers  (2d  Am.  ed.)  16-18.  23  Wright  v.  Merchants'  Nat.  Bank,  1 

18  Pitcher    v.    Helliar,    Dickens,   580 ;  Flippin,   568  ;    Irons    v.    Manufacturers' 
High  on  Receivers,  §§  725-732.  Nat.  Bank,  6  Biss.  301. 

19  Butler  v.  Freeman,  Amb.  301 ;  Kiffin  24  Harvey  v.  Lord,  10  Fed.  R.  236. 

v.  Kiffin,  cited  in  1  P.  Wms.  705;  Kerr  on  25  See  Kerr  on  Receivers  (2d  Am.  ed.), 

Receivers  (2d  Am.  ed.)  16-18.  80-83,  Bispham's  note ;  Howe  v.  Deuel,  43 

2«  Ex   parte    Warren,    10    Ves.    622;  Barb.  (N.  Y.)  504,  507. 

Anon.,  1  Atk.  578 ;  Ex  parte  Radcliffe,  1  26  Milwaukie   &   Minn.   R.    R.    Co.    v. 

J.  &  W.  639 ;  Kerr  on  Receivers  (2d  Am.  Soutter,  2  Wall.  510. 

ed.)  113,  114.  27  Covington  Drawbridge  Co.  v.  Shep- 

21  Kerr  on  Receivers  (2d  Am.  ed.)  113,  herd,  21  How.  112. 


§  240.]  WHEN   RECEIVERS   WILL  BE  APPOINTED.  345 

or  threatened  loss ; w  fourthly,  where  a  corporation  has  been  dis- 
solved and  has  no  officer  to  attend  to  its  affairs  ;29  fifthly,  where, 
for  a  long  time,  the  corporation  has  ceased  to  transact  business, 
and  its  officers  have  ceased  to  act ; 30  sixthly,  where  the  govern- 
ing body  is  so  divided  and  engaged  in  such  mutual  contentions 
that  its  members  cannot  act  together;31  and,  seventhly,  in  one 
case,  a  receiver  was  appointed  at  the  application  of  the  corpora- 
tion itself,  made  before  a  default  in  the  payment  of  interest  upon 
bonds  secured  by  mortgages,  where  it  was  for  the  interest  of  the 
public  that  the  business  carried  on  by  the  corporation  —  a  rail- 
road company  —  should  be  continued  without  interruption,  and 
the  corporation  was  hopelessly  insolvent,  and  there  was  danger 
of  an  attempt  by  creditors  to  gain  a  preference  by  attachment  or 
otherwise  in  such  a  manner  as  would  have  prevented  the  con- 
tinuance of  the  corporate  business.32  A  court  of  equity  will 
often  appoint  a  receiver  of  a  railroad  in  a  suit  for  the  foreclosure 
of  a  mortgage  containing  a  clause  pledging  its  tolls  and  income, 
when  it  would  not  do  so  if  no  such  clause  were  included  in  the 
mortgage.33  In  one  case  the  court  said  :  "  The  rights  of  holders 
of  negotiable  bonds  issued  by  a  railroad  company  and  secured  by 
a  mortgage  on  its  property,  are  not  to  be  measured  by  the  same 
rules  as  are  applied  to  an  ordinary  mortgage  on  a  farm  or  house 
and  lot,  to  secure  one  or  two  notes  held  by  one  mortgagee."34 
In  a  suit  to  enjoin  the  infringement  of  a  patent  by  an  insolvent 
defendant,  upon  an  interlocutory  application,  a  Circuit  Court 
appointed  a  receiver  of  the  profits  made  by  such  infringement.35 


28  Evans  v.  Coventry,  5  De  G.  M.  &  G.  81  Featlierstone  v.  Cooke,  L.  R.  16  Eq. 
911;  Sage  v.  Memphis  &  Little  Rock  R.  It.  298;  Trade  Auxiliary  Co.  v.  Vickers, 
Co.,  125  U.  S.  361.    See,  as  to  the  right  of  L.  R.  16  Eq  303. 

bondholders  thus  to  interfere,  Herrick  v.  32  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Cen- 

Grand  Trunk  Ry.  Co.,  7  Upper  Can.  L.  J.  tral  Trust  Co.  of  N.  Y.,  22  Fed.  R.  138; 

240.     But  see  also,  concerning  and  appar-  s.  c.  22  Fed.  R.  272;  s.  c.  22  Fed.  R.  513, 

ently   denying    the    right   of   unsecured  515.     See  also  Brassey  v.  New  York  & 

creditors,  Syers  v.  Brighton  Brewery  Co.,  N.  E.  R.  Co.,  19  Fed.  R.  663.    Contra,  Hugh 

11  L.   T.  (n.  s.)   560;  Mills  v.  Northern  v.  McRae,  Chase,  466. 

Ry.  of  Buenos  Ayres  Co.,  23  L.  T.  (n.  s.)  33  Allen  v.  The  Dallas  &  Wichita  R.  R. 

719.  Co.,  3  Woods,  316 ;  Tysen  v.  Wabash  It.  R, 

29  Lawrence   v.   The   Greenwich   Fire  Co.,  8  Biss.  247. 

Ins.  Co.,  1  Paige  (N.  Y.),  587.     See  also  «*  Allen  v.  The  Dallas  &  Wichita  R.  R. 

Hamilton   v.  Accessory  Transit  Co.,  26  Co.,  3  Woods,  316,  326,  per  Woods,  J. 

Barb.  (N.  Y.)  46;  Murray  v.  Vanderhilt,  35  Parkhurst  v.  Kinsman,  2  Blatchford, 

39  Barb.  (N.Y.)  140.  78. 

so  Wa-ren  v.  Fake,  49  How.  Pr.  (N.  Y.) 
430,  per  Westbrook,  J. 


546 


RECEIVERS. 


[CHAP.  XVII. 


§  241.  Rules  regulating  the  Appointment  of  Receivers.  —  It  has 
been  said,  that  in  order  to  obtain  the  appointment  of  a  receiver, 
the  moving  party  must  show,  first,  either  that  he  has  a  clear 
right  to  the  property  itself,  or  that  he  has  some  lien  upon  it,  or 
that  the  property  constitutes  a  special  fund  to  which  he  has  a 
right  to  resort  for  the  satisfaction  of  his  claim ;  and,  secondly, 
that  the  possession  of  the  property  by  the  defendant  was  obtained 
by  fraud  ;  or  that  the  property  itself,  or  the  income  arising  from 
it,  is  in  danger  of  loss  from  the  neglect,  waste,  misconduct,  or 
insolvency  of  the  defendant.1  The  appointment  of  a  receiver  is 
always  in  the  discretion2  of  the  court,  which,  however,  must  be 
exercised  with  great  circumspection  3  and  is  subject  to  review  by 
an  appellate  court.4  It  has  been  said,  that  the  appointment  can 
be  made  only  in  accordance  with  the  following  rules  :  "  1st.  That 
the  power  of  appointment  is  a  delicate  one,  and  to  be  exercised 
with  great  circumspection.  2d.  That  it  must  appear  the  claim- 
ant has  a  title  to  the  property,  and  the  court  must  be  satisfied 
by  affidavit  that  a  receiver  is  necessary  to  preserve  the  property. 
3d.  That  there  is  no  case  in  which  the  court  appoints  a  receiver 
merely  because  the  measure  can  do  no  harm.  4th.  That  '  fraud 
or  imminent  danger,  if  the  intermediate  possession  should  not 
be  taken  by  the  court,  must  be  clearly  proved  ; '  and  5thly.  That 
unless  the  necessity  be  of  the  most  stringent  character,  the  court 
will  not  appoint  until  the  defendant  is  first  heard  in  response 
to  the  application."  5 

§  242.  Ancillary  Receivers.  —  An  ancillary  receiver  is  a  receiver 
appointed  in  aid  of  a  receiver  appointed  by  another  court.1  It  is 
usual,  through  judicial  comity,  when  a  receiver  has  been  appointed 
by  one  Federal  Circuit  Court  for  the  others  through  judicial 
comity  to  appoint  the  same  person  an  ancillary  receiver  of  so 
much  of  the  same  estate  as  is  within  their  jurisdiction.2  In  such 
a  case  the  accounting  of  the  receivers,  and  nearly  all  proceedings 


§  241.  1  Chancellor  Buckner  in  Mays 
v.  Rose,  Freeman's  Ch.  (Miss.)  R.  703,  718. 
See  also  Beecher  v.  Bininger,  7  Blatchf. 
170 ;  Tysen  v.  The  Wabash  R.  R.  Co.,  8 
Biss.  247. 

2  Owen  v.  Homan,  4  H.  L.  C.  997, 1032. 

3  Milwaukie   &   Minn.   R.    R.    Co.    v. 
Soutter,  2  Wall.  521. 

*  Tysen  v.  The  Wabash  R.  R.  Co.,  8 
Biss.  247. 


5  Le  Grand,  C.  J.,  in  Bloudheim  v. 
Moore,  11  Md.  365,  374. 

§  242.  1  Jennings  v.  Phila.  &  Reading 
R.  R.  Co.,  23  Fed.  R.  569.  But  see  Wil- 
liams v.  Hintermeister,  26  Fed.  R.  889; 
Mercantile  Trust  Co.  v.  Kanawha  &  O. 
Ry.  Co.,  39  Fed.  R.  337,  and  §  10. 

2  Jennings  v.  Ph.  &  Reading  R.  R.  Co., 
23  Fed.  R.  569 ;  Central  Trust  Co.  v.  Wa- 
bash, St.  L.  &  P.  Ry.  Co.,  29  Fed.  R.  618. 


§  243.]  PREFERENCES  IN   FORECLOSURE   SUITS.  347 

affecting  the  estate,  are  usually  first  instituted  in  the  court  that 
first  made  the  appointment.3  This  subject,  however,  rests  in  the 
discretion  of  the  court  that  has  made  the  ancillary  appointment, 
which  has  full  control  over  the  receiver  whom  it  appointed.4  In 
a  case  where  the  judges  sitting  in  the  Circuit  Courts  of  different 
districts  in  the  same  circuit  differed  in  the  instructions  given  by 
them  to  the  same  person,  who  had  been  appointed  receiver  of 
the  same  railroad  in  each  district,  the  circuit  judge  refused  to 
interfere.5 

§  243.  Terms  upon  the  Appointment  of  Receivers,  and  Prefer- 
ences in  Foreclosure  Suits.  —  As  the  appointment  of  a  receiver  is 
in  its  discretion,  the  court  may  impose  terms  upon  the  party  apply- 
ing for  it.  Thus,  it  may  insist  as  a  condition  precedent  to  appoint- 
ing a  receiver  to  manage  a  colliery  that  the- moving  party  advance 
the  funds  necessary  to  continue  the  business.1  So,  a  party  or  per- 
son interested  in  a  suit  was  in  England  rarely  appointed  receiver 
unless  he  agreed  to  act  without  compensation.2  In  a  leading  case, 
the  Supreme  Court  laid  down  the  rule  as  regards  the  appointment 
of  receivers  in  suits  for  the  foreclosure  of  railroad  mortgages,  as 
follows:  "  We  have  no  doubt  that  when  a  court  of  chancery  is 
asked  by  railroad  mortgagees  to  appoint  a  receiver  of  railroad 
property,  pending  proceedings  for  foreclosure,  the  court,  in  the 
exercise  of  a  sound  judicial  discretion,  may,  as  a  condition  of 
issuing  the  necessary  order,  impose  such  terms  in  reference  to 
the  payment  from  the  income  during  the  receivership  of  out- 
standing debts  for  labor,  supplies,  equipment,  or  permanent 
improvement  of  the  mortgaged  property  as  ma}r,  under  the  cir- 
cumstances of  the  particular  case,  appear  to  be  reasonable."3 
This  is  said  elsewhere  in  the  case  to  depend  upon  the  application 
of  the  maxim  that  he  who  seeks  equity  must  do  equity.4  "  We 
think,  also,"  said  the  court,  "  that  if  no  such  order  is  made 
when  the  receiver  is  appointed,  and  it  appears  in  the  progress  of 
the  cause  that  bonded  interest  has  been  paid,  additional  equip- 

8  Jennings  v.  Pliila.  &  Reading  R.  R.  §  243.   i  Gibbs  v.  David,  L.  R.  20  Eq. 

Co.,  23  Fed.  R.  569.  373. 

4  Atkins  v.  Wabash,  St.  L.  &  P.  Ry.  2  Wilson  v.  Greenwood,  1  Swanst.  471. 
Co.,  29  Fed.  R.  161 ;  Central  Trust  Co  v.  8  Chief  Justice  Waite  in  Fosdick  v. 
Texas  &  St.  L.  Ry.  Co.,  22  Fed.  R.  135.  Schall,  99  U.  S.  235,  251,  252.  See  also 
But  see  Parsons  v.  Charter  Oak  Life  Ins.  Turner  v.  Indianapolis,  B.  &  W.  Ry.  Co., 
Co.,  31  Fed.  R.  305.  8  Biss.  315.    Contra,  Cue  v.  N.  J.  Midland 

5  Cent-al  Trust  Co.  v.  Texas  &  St.  L.  Ry.  Co.,  27  N.  J.  Eq.  37. 

Ry.,  22  Fed.  R.  135.  *  Fosdick  v.  Schall,  99  U.  S.  235,  253. 


348  RECEIVERS.  [CHAP.  XVII. 

ment  provided,  or  lasting  and  valuable  improvements  made  out 
of  earnings  which  ought  in  equity  to  have  been  employed  to 
keep  down  debts  for  labor,  supplies,  and  the  like,  it  is  within 
the  power  of  the  court  to  use  the  income  of  the  receivership  to 
discharge  obligations  which,  but  for  the  diversion  of  funds, 
would  have  been  paid  in  the  ordinary  course  of  business.  This, 
not  because  the  creditors  to  whom  such  debts  are  due  have  in 
law  a  lien  upon  the  mortgaged  property  or  the  income,  but 
because,  in  a  sense,  the  officers  of  the  company  are  trustees  of 
the  earnings  for  the  benefit  of  the  different  classes  of  creditors 
and  the  stockholders ;  and  if  they  give  to  one  class  of  creditors 
that  which  properly  belongs  to  another,  the  court  may,  upon  an 
adjustment  of  the  accounts,  so  use  the  income  which  comes  into 
its  own  hands  as,  if  practicable,  to  restore  the  parties  to  their 
original  equitable  rights.  While,  ordinarily,  this  power  is  con- 
fined to  the  appropriation  of  the  income  of  the  receivership 
and  the  proceeds  of  moneyed  assets  that  have  been  taken  from 
the  company,  cases  may  arise  where  equity  will  require  the  use 
of  the  proceeds  of  the  sale  of  the  mortgaged  property  in  the 
same  way.  Thus  it  often  happens  that,  in  the  course  of  the 
administration  of  the  cause,  the  court  is  called  upon  to  take 
income  which  would  otherwise  be  applied  to  the  pa}?ment  of  old 
■debts  for  current  expenses,  and  use  it  to  make  permanent  im- 
provements on  the  fixed  property,  or  to  buy  additional  equip- 
ment. In  this  way  the  value  of  the  mortgaged  property  is  not 
infrequently  materially  increased.  It  is  not  to  be  supposed  that 
any  such  use  of  the  income  will  be  directed  by  the  court,  without 
giving  the  parties  in  interest  an  opportunity  to  be  heard  against 
it.  Generally,  as  we  know  both  from  observation  and  experi- 
ence, all  such  orders  are  made  at  the  request  of  the  parties  or 
with  their  consent.  Under  such  circumstances,  it  is  easy  to  see 
that  there  may  sometimes  be  a  propriety  in  paying  back  to  the 
income  from  the  proceeds  of  the  sale  what  is  thus  again  diverted 
from  the  current  debt  fund  in  order  to  increase  the  value  of  the 
property  sold.  The  same  may  sometimes  be  true  in  respect  to 
expenditures  before  the  receivership.  No  fixed  and  inflexible 
rule  can  be  laid  down  for  the  government  of  the  courts  in  all 
cases.  Each  case  will  necessarily  have  its  own  peculiarities, 
which  must  to  a  greater  or  less  extent  influence  the  Chancellor 
when  he  comes  to  act.     The  power  rests  upon  the  fact,  that  in 


§  243.]  PREFERENCES    IN   FORECLOSURE   SUITS.  349 

the  administration  of  the  affairs  of  the  company  the  mortgage 
creditors  have  got  possession  of  that  which  in  equity  belonged 
to  the  whole  or  a  part  of  the  general  creditors.  Whatever  is 
done,  therefore,  must  be  with  a  view  to  a  restoration  by  the 
mortgage  creditors  of  that  which  they  have  thus  inequitably 
obtained.  It  follows  that  if  there  has  been  in  realit}-  no  diver- 
sion, there  can  be  no  restoration  ;  and  that  the  amount  of  res- 
toration should  be  made  to  depend  upon  the  amount  of  the 
diversion.  If,  in  the  exercise  of  this  power,  errors  are  com- 
mitted, ihej,  like  others,  are  open  to  correction  on  appeal.  All 
depends  upon  a  proper  application  of  well-settled  rules  of  equity 
jurisprudence  to  the  facts  of  the  case,  as  established  by  the 
evidence."  5  Ordinarily,  claims  of  this  nature  are  paid  out  of  the 
earnings  of  the  road,  but  they  are  sometimes  paid  from  the  pro- 
ceeds of  its  sale.6  This  doctrine  was  extended  in  a  subsequent 
case  where,  instead  of  a  sale,  the  mortgagees  sought  a  decree  of 
strict  foreclosure,  which  was  granted  saving  the  rights  of  inter- 
veners.7 The  Supreme  Court  then  said  again:  "As  the  diversion 
of  the  fund  created  in  equity  a  charge  on  the  property  as  secu- 
rity for  its  restoration,  it  is  clear  that  if  the  mortgagees  prefer  to 
take  the  property  under  a  decree  of  strict  foreclosure,  they  take 
it  subject  to  the  charge  in  favor  of  the  current  debt  creditor 
whose  money  they  have  got,  and  that  he  can  insist  on  a  sale  of 
the  property  for  his  benefit  if  they  fail  to  make  the  payment 
without.8  .  .  .  We  do  not  now  hold,  any  more  than  we  did  in 
Fosdick  v.  Schall  [99  U.  S.  235]  or  Huidekoper  v.  Locomotive 
Works,  99  U.  S.  258,  260,  that  the  income  of  a  railroad  in  the 
bands  of  a  receiver,  for  the  benefit  of  mortgage  creditors  who 
have  a  lien  upon  it  under  their  mortgage,  can  be  taken  away 
from  them  and  used  to  pay  the  general  creditors  of  the  road. 
All  we  then  decided,  and  all  we  now  decide,  is,  that  if  current 
earnings  are  used  for  the  benefit  of  mortgage  creditors  before 

6  Chief  Justice  Waite    in  Fosdick  v.  Pittsburgh  Bessemer  Steel  Co.,  120  U.  S. 

Schall,  99  U.  S.  235,  253,  254.     See  also  649.     But  see  Penn  v.  Calhoun,  121  U.  S. 

Fosdick  v.  Car  Co.,  99  U.  S.  256 ;  Hale  v.  251 ;  St.  Louis,  A.  &  T.  H.  R.  R.  Co.  v. 

Frost,  99  U.  S.  389  ;  Miltenberger  v.  Lo-  Cleveland,  C.  C.  &  I.  Ry.  Co.,  125  U.  S. 

transport  Ry.  Co.,    106  U.   S.  286,  308;  658;  Wood  v.  Guarantee  Trust  &  Safe 

Union  Trust  Co.  v.  Souther,  107  U.  S.  591 ;  Deposit  Co.,  128  U.  S.  416. 
Union  Trust  Co.  v.  Walker,  107  U.  S.  596 ;  6  Brewer,  J.,  in  Blair  v.  St.  Louis,  H.  & 

Burnham  v.  Bowen,  111  U.  S.  776 ;  Blair  K.  Ry.  Co.,  22  Fed.  R.  471,  474. 
v.  St.  Louis,  H.  &  K.  Ry.  Co.,  22  Fed.  R.  7  Burnham  ».  Bowen,  111  U.  S.  776. 

471,  474,  with  a  valuable  note  by  Benj.  F.  8  Chief  Justice  Waite  in  Burnham  v. 

Rex,  Esq., of  the  St.  Louis  bar;  Porter  v.  Bowen,  111  U.  S.  776,  782,  783. 


350  RECEIVERS.  [CHAP.  XVIL 

current  expenses  are  paid,  the  mortgage  security  is  chargeable 
in  equity  with  the  restoration  of  the  fund  which  has  been  thus 
improperly  applied  to  their  use." 9  In  accordance  with  these 
principles,  it  has  become  the  practice  in  the  seventh  circuit  to 
impose  as  a  condition  upon  the  appointment  of  a  receiver  in  a 
suit  for  the  foreclosure  of  a  railroad  mortgage,  that  debts  for 
materials  and  supplies  and  labor  furnished  to  the  mortgagor 
within  the  six  previous  months  be  paid  out  of  the  net  income  or 
the  proceeds  of  the  sale  of  the  road,  before  the  debt  secured  by 
the  mortgage.10  This  is  called  "  the  six  months  rule."  n  Other 
circuits  adopt  a  similar  practice.12  Three  months  is  a  not  un- 
common limitation  of  time.13  Claims  due  eight14  and  eleven15 
months  before  the  receivership  have  been  given  a  preference. 
And  in  one  case  those  who  advanced  money,  after  a  default  in 
interest  but  two  }^ears  before  the  receivership,  to  pay  the  arrears 
of  wages  due  striking  laborers,  under  a  promise  from  the  presi- 
dent of  the  mortgagor  that  they  would  be  repaid  out  of  the 
current  earnings  of  the  road,  were  given  a  preference.16  Had 
security  been  taken  and  no  such  promise  been  made,  no  such 
preference  would  probably  have  been  given  them.17  A  claim 
for  the  price  of  rails  furnished  a  year  before  the  receivership  was 
denied  a  preference.18  So  was  a  claim  by  a  contractor  for  the 
construction  of  a  part  of  the  road  due  three  years  before  the 
appointment  of  the  receiver.19  The  price  of  gas  meters  was 
held  not  to  be  a  part  of  the  "  operating  expenses "  of  a  gas 
company.20  The  claim  of  a  secretary  for  a  balance  of  salary  due 
him  within  the  prescribed  time  has  been  thus  preferred.21     A 

9  Chief  Justice  Waite  in  Burnham  v.  Hale  v.  Frost,  99  U.  S.  389  ;  Miltenberger 

Bowen,  111  U.  S.  776,  783.  v.  Logansport  Ry.  Co.,  106  U.  S.  286,  308. 

1U  In  re  Kelly  v.  Receiver  of  Green  Bay         14  Skiddy   v.   Atlantic,   Miss.,   &  Ohio 

&  Minn.  R.  R.  Co.,  5  Fed.  R.  846.     See  R.  R.  Co.,  3  Hughes,  320. 
Union  Trust  Co.  v.  Souther,  107  U.  S.        15  Burnham  v.  Bowen,  111  U.  S.  776. 
591,  593;  Union  Trust  Co.  o.  111.  Midland        ifi  Atkins  v.  The  Petersburg  R.  R.  Co., 

Ry.  Co.,  117  U.  S.  434  ;  Blair  v.  St.  Louis,  3  Hughes,  307. 
H.  &  K.  Ry.  Co.  22  Fed.  R.  471,  474.  17  Duncan  v.  Mobile  &  Ohio  R.  R.  Co., 

11  In   re   Kelly  v.   Receiver  of   Green  2  Woods,  542  ;  Addison  v.  Lewis,  75  Va. 
Bay  &  Minn.  R.  R.  Co.,  5  Fed.  R.  846,  701,  713,  714. 

851,  note.  18  Skiddy  v.  Atlantic,   Miss.,   &  Ohio 

12  Atkins  v.  Petersburg  R.  R.  Co.,  3     R.  R.  Co.,  3  Hughes,  320. 

Hughes,  307  ;  Blair  v.  St.  Louis,  H.  &  K.  19  Addison  v.  Lewis,  75  Va.  701,  714, 

Ry.  Co.,  22  Fed.  R.  471,  474 ;  Olyphant  v.  715. 

St.  Louis  Ore  &   Steel  Co.,  22  Fed.  R.  »  Reyburn  v.  Consumers'  Gas,  Fuel,  & 

179;    Taylor  v.  Phila.  &  Reading  R.  R.  Light  Co.,  29  Fed.  R.  561. 

Co.,  7  Fed.  R.  377.  21  Olyphant  v.  St.  Louis  Ore  &  Steel 

13  Fosdick  v.  Schall,  99  U.  S.  235,  238 ;  Co.,  22  Fed.  R.  179.     But  see  Wells  v. 


§  243.]        PREFERENCES  IN  FORECLOSURE  SUITS.  351 

president  forfeits  any  right  he  may  possess  to  such  a  preference 
by  publishing  in  the  annual  report  a  statement  that  his  salary 
has  been  paid.22  A  debt  due  an  attorney  for  services  performed 
immediately  before  the  appointment  of  the  receiver  lias  been 
preferred  under  this  rule  ;23  but  not  a  debt  due  for  such  services, 
rendered  more  than  a  year  before  the  appointment;24  nor  for 
his  payment,  at  the  request  of  the  president  of  the  company,  a 
few  weeks  before  its  default,  under  a  promise  of  reimbursement 
within  a  few  months,  of  judgments  and  other  claims  against  it 
for  wages  and  injuries  to  cattle  ;25  nor  for  his  payment  as  surety 
upon  appeal  bonds  of  judgments  against  the  railroad  upon  claims 
two  or  three  years  old,  although  the  appeals  were  taken  a  few 
months  before  the  appointment  of  the  receiver  and  the  pay- 
ment made  after  that  appointment.26  Preferences  have  thus 
been  given  to  claims  for  fuel,27  locomotives,28  cars,29  reason- 
able car-rent,30  car-springs  and  spirals,31  repairs,32  and  "  limited 
amounts  due  other  and  connecting  lines  of  road  for  materials 
and  repairs  and  for  unpaid  ticket  and  freight  balances,  the 
outcome  of  indispensable  business  relations,  where  a  stoppage 
of  the  continuance  of  such  business  relations  would  be  a  prob- 
able result,  in  case  of  non-payment,  the  general  consequence 
involving  largely,  also,  the  interests  and  accommodation  of 
travel  and  traffic."  33  Where  a  balance  is  due  upon  the  purchase 
price  of  cars  or  locomotives  delivered  to  the  railroad  company 
under  a  contract  of  conditional  sale,  and  the  seller  reclaims  them 
or  the  receiver  rejects  them,  a  claim  for  the  value  of  their  use 
or  for  the  injury  done  to  them  while  in  the  possession  of  the 
railroad  is  not  entitled  to  a  preference.34  If,  however,  the  re- 
ceiver retains  them  with  the  assent  of  the  seller,  the  balance  of 

Southern  Minn.  Ry.  Co.,  1  Fed.  R.  270;  29  Fosdick  v.  Schall,  99  U.  S.  235,  238; 

Addison  v.  Lewis,  75  Va.  701,  712,  713.  Fosdick  ».  Car  Co.,  99  U.  S.  256 ;  Frank 

22  Addison  v.  Lewis,  75  Va.  701,  713.  v.  Denver  &  R.  G.  Ry.  Co.,  23  Fed.  R.  123. 

23  Blair  v.  St.  Louis,  H.  &  K.  Ry.  Co.  30  Thomas  v.  Peoria  &  R.  I.  Ry.  Co.,  36 
(Norton,  Intervenor),  23  Fed.  R.  521.  Fed.  R.  808. 

«  Blair  v.  St.  Louis,  H.  &  K.  Ry.  Co.  31  Hale  v.  Frost,  99  U.  S.  389. 

(Norton,  Intervenor),  23  Fed.  R.  521.  &  Fosdick  v.  Schall,  99  U.  S.  235,  238 ; 

25  Blair  v.  St.  Louis,  H.  &  K.  Ry.  Co.  Miltenberger  v.  Logansport  Ry.  Co.,  106 
(Norton,  Intervenor),  23  Fed.  R.  521.  U.  S.  286,  311. 

26  Blair  o.  St.  Louis,  H.  &  K.  Ry.  Co.  33  Miltenberger  v.  Logansport  Ry.  Co., 
(Norton,  Intervenor),  23  Fed.  R.  523.    But  106  U.  S.  280,  311,  per  Rlatchford,  J. 

see  Union  Trust  Co.  v.  Morrison,  125  U.  31  Fosdick  v.  Schall,  99  U.  S.  235,  255 ; 

S.  591.  Huidekoper   v.    Locomotive   Works,    99 

27  Burnham  v.  Bowen,  111  U.  S.  776.  U.  S.  258. 

28  Fosdick  v.  Schall,  99  U.  S.  235,  238. 


352  RECEIVERS.  [CHAP.  XVII. 

the  purchase  money  is  a  preferred  claim  to  that  of  a  prior 
mortgage,35  but  is  inferior  to  the  claims  of  laborers  for  services 
rendered  immediately  before  the  appointment  of  the  receiver  and 
subsequently  to  the  delivery  of  the  rolling  stock  to  the  com- 
pany.36 In  one  case  it  was  held,  that  a  claim  for  oil  necessary 
for  use  in  operating  a  railroad,  which  was  furnished  before  a 
default  in  interest,  was  inferior  to  that  of  the  mortgagees ;  but 
that  a  claimant  for  such  oil  furnished  since  a  default  in  the 
payment  of  interest  had  an  equitable  lien  superior  to  the 
mortgagees',  when  the  claimant  had  accepted  a  promissory  note 
of  the  railroad  company  on  account  of  part  of  both  classes  of 
indebtedness ;  which  note  he  surrendered  to  the  receiver  upon 
petitioning  for  the  payment  of  his  claim.37  Where,  before  the 
appointment  of  a  receiver,  a  bondholder  accepted  a  compromise 
which  scaled  down  the  indebtedness  ;  in  pursuance  thereof  sur- 
rendered his  bonds  and  coupons,  under  an  agreement  to  receive 
in  exchange  new  bonds  secured  by  a  subsequent  mortgage ;  and 
did  receive  new  bonds  sufficient  to  replace  the  greater  part  of 
those  which  he  surrendered  ;  but  there  were  a  few  for  which  no 
new  bonds  were  issued,  apparently  because  no  new  bonds  were 
issued  for  so  small  an  amount, — it  was  held  that  his  unadjusted 
claim  for  this  balance  remained  secured  by  the  old  mortgage, 
and  was  superior  to  those  under  the  subsequent  mortgage  given 
to  secure  the  new  bonds.38  In  two  cases  decided  by  the  same 
judge  a  preference  was  given  to  claims  for  injuries  to  passengers 
within  the  prescribed  time.39  Chums  for  damages  by  fire  to 
adjoining  property  caused  before  the  appointment  of  the  receiver 
have  been  denied  a  preference.40  Where  the  parties  to  a  fore- 
closure suit  waived  a  sale,  and  entered  an  order  by  consent 
leasing  the  property  to  another  railroad  and  appointing  a  re- 
ceiver of  the  rent,  the  court  directed  that  all  floating  unsecured 

35  Fosdick  v.  Car  Co.,  99  U.  S.  256  ;  &  St.  L.  Ry.  Co.,  22  Fed.  R.  135 ;  Dow  v. 

Frank  v.  Denver  &   R.  G.  Ry.  Co.,  23  Memphis  &  L.  R.  R.  Co.,  20  Fed.  R.  260, 

Fed.  R.  123.  266,  267,  Caldwell,  J.     But  see  Central 

3«  Frank  v.  Denver  &  R.  G.  Ry.  Co.,  Trust  Co.  v.  East  Tenn.,  V.  &  G.  R.  Co., 

23  Fed.  R.  123.  30  Fed.  R.  895. 

37  Central  Trust  Co.  v.  Texas  &  St.  L.  40  In  re  Dexterville  Manuf.  &  Boom  Co. 
Ry.  Co.,  In  re  Waters  Pierce  Oil  Co.,  In-  v.  Case,  4  Fed.  R.  873 ;  Hiles  v.  Case,  14 
tervenor,  23  Fed.  R.  703.  Fed.   R.    141 ;    a.  c.  9  Biss.  549.     Contra, 

38  Blair  v.  St.  Louis,  H.  &  K.  Ry.  Co.  Dow  v.  Memphis  &  L.  R.  R.  Co.,  20  Fed. 
(Greene,  Intervenor),  23  Fed.  R.  524.  11.  200,  266,  267. 

39  Central  Trust  Co.  of  N.  Y.  v.  Texas 


§  243.]        PREFERENCES  IN  FORECLOSURE  SUITS.  353 

creditors  should  be  paid  out  of  the  rent  before  its  application  in 
discharge  of  the  claims  of  the  bondholders.41  That  a  creditor 
for  supplies  has  taken  notes  of  the  railroad  company  extending 
its  time  of  payment  for  one  month  will  not  prejudice  his  claim 
to  a  preference.42  Neither  will  his  acceptance  of  a  renewal  of 
these  notes  after  the  receiver's  appointment.43  An  assignee  of  a 
preferred  claim  has  all  the  rights  of  his  assignor.44  Where  a 
claim  to  a  preference  is  made  because  money  was  loaned  the 
mortgagor  at  the  request  of  the  bondholders,  a  request  made  by 
all  the  bondholders  must  be  shown  or  the  preference  will  be 
denied.45  In  a  recent  important  suit  to  foreclose  a  railroad 
mortgage,  the  following  order  was  made.  "  That  all  outstanding 
debts  of  the  said  railway  company  for  labor,  materials,  and  sup- 
plies used  in  the  equipment  or  permanent  improvement  of  the 
said  railroad,  and  all  outstanding  debts  for  necessary  operating 
and  managing  expenses  thereof  in  the  ordinarjr  course  of  its 
business,  incurred  after  the  first  day  of  September,  1883,  shall 
be  allowed  by  the  master  as  equitable  liens,  prior  in  right  to  the 
lien  of  the  mortgage  sued  on,  irrespective  of  statutory  liens 
therefor.  And  it  is  further  ordered  that  all  such  claims  accru- 
ing on  open  running  accounts  between  said  railroad  and  its  cred- 
itors shall  be  considered  as  embraced  within  this  order,  if  any 
part  of  the  work  was  done,  materials  furnished  or  expenses 
incurred  after  the  first  day  of  September,  1883,  on  subsisting 
contracts  necessary  for  the  continued  operation  of  the  road  by 
said  receiver ;  otherwise  the  demand  will  be  limited  to  what 
accrued  subsequent  to  September  first,"  at  which  date  the  de- 
fault in  payment  of  interest  upon  the  mortgage  occurred.46 
This  order  was,  subsequently,  thus  expounded :  "  The  various 
rulings  of  the  court  with  respect  to  betterments  and  wages,  not 
within  the  respective  times  stated,  —  to  wit,  six  months  or  other- 
wise, —  have  rested  upon  this  distinct  proposition  :  That  supplies 
furnished  or  services  performed  under  a  subsisting  contract,  to 

41  Farmers'  L.  &  Tr.  Co.  v.  Mo.  I.  &  N.  45  In  re  Kelly  v.  Green  Bay  &  Minn.  R. 
Ry.  Co.,  21  Fed.  R.  264.  Co.,  5  Fed.  R.  846. 

42  Burnliam  v.  Bowen,  111  U.  S.  776.  4e  Treat,  J.,  in  Central  Trust  Co.  v. 
See  also  Central  Trust  Co.  v.  Texas  &  Texas  &  St.  L.  Ry.  Co.  23  Fed.  R.  703 ; 
St.  L.  Ry.  Co.,  In  re  Waters  Pierce  Oil  cited  and  followed  by  Brewer,  J.,  in  Blair 
Co.,  Intervenor,  23  Fed.  R.  703.  v.  St.  Louis,  H.  &  K  Ry.  Co.,  In  re  Merri- 

4a  Burnliam  v.  Bowen,  111  U.  S.  776.        wether  and  others,  Intervenors,  23  Fed.  R. 
44  Union  Trust  Co.  v.  Walker,  107  U.  S.     701,  705. 
596;  Burnham  v.  Bowen,  111  U.  S.  776. 

23 


354  RECEIVERS.  [CHAP.  XVII. 

which  and  to  the  continuance  of  -which  the  parties  were  respec- 
tively bound,  and  the  termination  of  said  contract  did  not 
happen  except  within  the  time  limited  ;  or  when  such  a  continu- 
ing contract  was  still  in  force  at  the  appointment  of  a  receiver, 
the  items  of  such  continuing  and  subsisting  contracts  would  fall 
within  the  prescribed  rules.  No  other  demands,  independent 
in  their  nature,  incurred  before  the  prescribed  time,  are  to  be 
treated  other  than  as  credits  at  large.  If  this  ruling  is  enforced 
there  need  be  no  difficulty  with  respect  to  what  are  called  4  open 
and  current'  accounts.  Such  accounts  must  be  under  subsisting 
contracts,  not  to  be  terminated  until  within  the  period  of  time 
named ;  otherwise  all  items  previous  to  that  time  must  be  re- 
jected. This  ruling  ma}'  be  subject  to  an  exception  where  the 
local  statute  gives  a  lien  under  a  different  limitation.  In  the 
latter  cases  difficulties  may  arise  if  local  decisions  are  followed, 
each  one  of  which  must  depend  upon  its  special  facts."  47  It  has 
been  held  that  pending  a  receivership  in  a  Federal  court,  where 
parties  are  entitled  to  a  lien,  and  can  secure  it  by  proceedings 
under  a  State  statute,  they  are  not  required  to  go  to  the 
expense  of  such  proceedings,  but  the  Federal  court  will  treat 
it  as  though  all  needful  steps  had  been  taken  to  establish  the 
lien  ;48  and  that  "  where  like  demands  are  presented  from  other 
States  in  which  no  statutory  lien  therefor  exists,  they  shall  be 
entitled  to  the  same  status,  so  that  statutory  and  equitable  liens 
may  rest  on  a  like  basis."49  An  entry  upon  the  books  of  the 
mortgagor  showing  the  claim  to  be  good  is,  in  the  absence  of 
suspicious  circumstances,  prima  facie  proof.50  The  attorneys  of 
both  the  receiver  and  the  complainant  should  have  notice  of  the 
hearing  before  a  master  of  such  a  claim.51  An  order  directing  a 
receiver  to  carry  out  his  corporation's  contracts  does  not  neces- 
sarily give  those  who  claim  damages  for  a  breach  of  those  con- 
tracts a  preference  over  lien-holders.52      In  a  recent  case,   the 

47  Treat.  J,  as  quoted  br  Brewer,  J.,  in  49  Treat,  J.,  in  Blair  v.  St,  Louis,  H.  & 

Central  Trust  Co.  v.  Texas  &  St.  L.  Ry.  K.  R.  Co.,  19  Fed.  R.  861,  862. 

Co.,  Camden  Lumber  Co.  and  others,  In-  w  Blair  v.  St.  Louis,  H.  &  K.  R.  Co.,  19 

tervenors,  23  Fed.  R.  673.  Fed.  R.  861,  862,  Treat,  J. ;  s.  c.  22  Fed. 

*s  Brewer,  J.,  in  Central  Trust  Co.  v.  R.  471,  472,  Brewer,  J. 

Texas  &  St.  L.  Ry.  Co.,  Camden  Lumber  51  Blair  v.  St.  Louis,  HIKE,  Co.,  19 

Co.  and  others,  Intervenors,  23  Fed.  R.  Fed.  R.  861,  862. 

673,  674,  675 ;  Treat,  J.,  in  Blair  v.  St.  M  Olyphant  v.  St.  Louis  Ore  &   Steel 

Louis,  H.  &  K.  R.  Co.,  19  Fed.  R.  861.  Co.,  28  Fed.  R.  729. 
But  see  Hassall  v.  Wilcox,  130  U.  S.  493. 


§  243.]        PREFERENCES  IN  FORECLOSURE  SUITS.  355 

following  conditions  were  inserted  in  the  order  appointing  a  re- 
ceiver: "(1)  That  the  debts,  if  any,  due  from  the  railroad  com- 
pany for  ticket  and  freight  balances ;  and  for  work  and  labor 
performed  by  its  employes  and  laborers;  and  for  supplies  and 
materials  furnished  for  equipping,  operating,  repairing,  or  improv- 
ing the  road;  and  all  obligations  incurred  in  the  transportation  of 
passengers  and  freight,  or  for  injuries  to  person  or  property,  which 
have  accrued  within  six  months  last  past,  —  shall  be  paid  by  the 
receiver  out  of  the  earnings  of  the  road.  (2)  That  persons 
having  demands  or  claims  of  any  character  against  the  receiver, 
may,  without  applying  to  this  court  for  leave  to  do  so,  bring 
suit  thereon  against  the  -  receiver  in  any  court  in  this  state 
having  jurisdiction,  or  may  file  their  petition  and  have  their 
claim  adjudicated  in  this  court  at  their  election.  This  clause 
shall  not  be  construed  as  authorizing  the  levy  of  any  writ  or 
process  on  the  property  in  the  hands  of  the  receiver,  or  taking 
the  same  from  his  custody  or  possession.  (3)  That  the  debts 
and  liabilities  of  the  railroad  company  which  the  receiver  is 
ordered  to  pay,  together  with  all  debts  and  liabilities  which  said 
receiver  may  incur  in  operating  said  road  shall  be  paramount 
and  superior  to  the  lien  of  the  mortgages  set  out  in  the  plaintiff's 
bill  and  said  lien  shall  continue  until  said  debts  and  liabilities 
are  satisfied ;  and  the  discharge  of  said  property  from  the  cus- 
tody of  the  receiver  shall  not  affect  such  lien,  or  deprive 
claimants  of  the  opportunity  of  proving  their  demands,  but  said 
receiver  or  a  successor  shall  be  continued  in  office  for  the  ad- 
justment of  such  demands,  and  may  be  sued  therefor ;  and 
if  said  demands  are  not  paid  by  the  person  or  corporation  in 
possession  of  said  mortgaged  property,  the  court  may  repos- 
sess or  may  decree  a  sale  of  the  property,  as  shall  seem  most 
expedient.  (4)  The  said  plaintiff  shall  prosecute  this  suit  to 
final  decree  as  speedily  as  the  same  can  be  done  under  the 
rules  of  equity  practice,  and  failing  so  to  do,  the  court  of  its 
own  motion  will  discharge  said  property  from  the  custody 
of  the  receiver."  53  Whether  this  doctrine  applies  to  the  fore- 
closure of  any  except  railroad  and  telegraph  mortgages  is  very 
doubtful.64 

63  Caldwell,  J.,  in  Dow  v.  Memphis  &  L.     posit  Co.,  128  U.  S.  416  ;  Raht  v.  Attrill, 
R.  Ry.  Co.,  20  Fed.  R.  260,  266,  267.  106  N.  Y.  423;  Reyburn  v.  Consumers' 

64  Wood  v.  Guarantee  Trust  &  Safe  "De-     Gas,  Fuel  &  Light  Co.,  29  Fed.  It.  561. 


356  RECEIVERS.  [CHAP.  XVII. 

§  244.  Property  over  which  Receivers  may  be  Appointed.  — 
A  receiver  may  be  appointed  to  preserve  and  take  possession  of 
every  kind  of  property,  whether  the  same  be  what  is  termed  cor- 
poreal or  incorporeal,  which  can  be  seized  by  execution  at  law  or 
which  constitutes  equitable  assets.1  Thus  receivers  have  been 
appointed  to  collect  and  hold  the  profits  of  a  rectory,2  of  a  col- 
lege fellowship,3  and  of  the  offices  of  a  master  forester  in  a  royal 
forest,4  and  of  a  county  clerk  of  peace,5  the  tolls  of  a  turnpike  ; 6 
to  manage  and  collect  the  profits  of  mines,7  plantations,8  a  theatre,9 
a  newspaper,10  and  a  railroad;11  to  exercise  the  right  to  sell  a 
conditional  right  of  membership  in  an  exchange ; 12  and  to  take  pos- 
session of  the  estate  of  an  intestate  with  power  to  apply  for  letters 
of  administration.13  After  the  repeal  of  the  charter  of  the  City 
of  Memphis,  a  receiver  was  appointed  to  take  possession  of  all 
its  property  which  could  be  subjected  to  the  payment  of  its 
debts.14  In  the  last-mentioned  case,  the  Supreme  Court  laid 
down  the  following  propositions  :  "  1.  Property  held  for  public 
uses,  such  as  public  buildings,  streets,  squares,  parks,  promenades, 
wharves,  landing-places,  fire-engines,  hose  and  hose-carriages, 
engine-houses,  engineering  instruments,  and  generally  everything 
held  for  governmental  purposes,  cannot  be  subjected  to  the  pay- 
ment of  the  debts  of  the  city.  Its  public  character  forbids  such 
an  appropriation.  Upon  the  repeal  of  the  charter  of  the  city,  such 
property  passed  under  the  immediate  control  of  the  State,  the 
power  once  delegated  to  the  city  in  that  behalf  having  been 
withdrawn.  2.  The  private  property  of  individuals  within  the 
limits  of  the  territory  of  the  city  cannot  be  subjected  to  the 
payment   of  the    debts    of  the    city,  except    through    taxation. 

§  214.   i  Davis  v.  Gray,  16  Wall.  203,  *  Jefferys  v.  Smith,  1J.  &  W.  298. 

217 ;  Davis  v.  Duke  of  Marlborough,  2  8  Morris  v.  Elme,  1  Ves.  Jr.  139. 

Swanst.    108,    127  ;    Blanehard    v.    Caw-  9  Const  v.  Harris,  T.  &  R.  496,  528. 

thornp,  4  Simons,  566.     See  Palmer  v.  10  Chaplin  v.  Young,  6  L.  T.  (n.  s.)  97 ; 

Vaughan,  3  Swanst.  173;  Meriwether  v.  Kelly  v.  Hutton,  17  W.  R.  4l'5. 

Garrett,  102  U.  S.  472,  501.  »  Stevens  v.  Davison,  18  Grat.  (Va.) 

-Silver    v.    Bishop    of    Norwich,    3  819 ;  Davis  v.  Gray,  16  Wall.  203 ;   Bar- 

Swanst.  112;   White  v.  Bishop  of  Peter-  ton  ».  Barbour.,  104  U.  S.  126. 

boronsrh,  3  Swanst.  109.  12  p0Well   v.   Waldron,  89  N.  Y.  328; 

3  Feistel  v.  King's  College,  10  Eeav.  In  re  Ketchum,  1  Fed.  R.  840  ;  In  re 
491.  Wer.ler,  15  Fed.  R.  789;  Hyde  v.  Woods, 

4  Blanehard  v.  Cawthorne,  4  Simons,  94  U.  S.  523  ;  Piatt  v.  Jones,  96  N.  Y.  24. 
560.  is  ne  Mayer,  L.  R.  3  P.  &  M.  39. 

~»  Pilnier  v.  Vaughan,  3  Swanst   173.  u  Meriwether  v.  Garrett,  102  U.  S.  472, 

6  Knapp  v.  Williams,  4  Ves.  430,  note ;     484. 
Dumville  v.  Ashbrooke,  3  Russ.  98,  note. 


§  244.]      PROPERTY  OYER  WHICH  RECEIVERS  MAY  BE  APPOINTED.      357 

The  doctrine  of  some  of  the  States,  that  such  property  can 
be  reached  directly  on  execution  against  the  municipality,  has 
not  been  generally  accepted.  3.  The  power  of  taxation  is 
legislative,  and  cannot  be  exercised  otherwise  than  under  the 
authority  of  the  legislature.  4.  Taxes  levied  according  to  law 
before  the  repeal  of  the  charter  other  than  such  as  were  levied 
in  obedience  to  the  special  requirement  of  contracts  entered  into 
under  the  authority  of  law,  and  such  as  were  levied  under  judicial 
direction  for  the  payment  of  judgments  recovered  against  the 
city,  cannot  be  collected  through  the  instrumentality  of  a  court 
of  chancery  at  the  instance  of  creditors  of  the  city.  Such  taxes 
can  only  be  collected  under  authority  from  the  legislature.  If  no 
such  authority  exists,  the  remedy  is  by  appeal  to  the  legislature, 
which  alone  can  grant  relief.  Whether  taxes  levied  in  obedience 
to  contract  obligations,  or  under  judicial  direction  can  be  col- 
lected through  a  receiver  appointed  by  a  court  of  chancery,  if 
there  be  no  public  officer  charged  with  authority  from  the  legis- 
lature to  perform  that  duty,  is  not  decided,  as  the  case  does  not 
require  it."15  In  a  subsequent  case,  the  Supreme  Court  held 
that  taxes  already  levied  could  in  no  case  be  collected  through  a 
receiver.16  Until  the  passage  of  a  statute  allowing  it  to  be  done, 
the  English  courts  held  that  a  receiver  could  not  be  appointed 
to  manage  a  railroad  ; 17  but  such  an  appointment  is  authorized 
and  is  very  frequent  in  this  country,18  and  even  in  England  a 
receiver  might  always  be  appointed  to  receive  the  tolls  of  a  rail- 
road.19 A  lugubrious  picture  of  the  result  of  such  appoint- 
ments has  been  drawn  by  Mr.  Justice  Miller:  "The  rapid  ab- 
sorption of  the  business  of  the  country  of  every  character  by 
corporations,  while  productive  of  much  good  to  the  public,  is 
beginning  also  to  develop  many  evils,  not  the  least  of  which 
arises  from  their  failure  to  pay  debts  and  perform  the  duties 
which  by  the  terms  of  their  organization  they  assumed.  One  of 
the  most  efficient  remedies  for  the  failure  to  pay,  when  it  arises 

15  Chief  Justice  Waite  in  Meriwether  v.  17  Gardner  v.  London,  Chatham,  & 
Garrett,  102  U.  S.  472,  501.  Upon  the  first  Dover  Ry.  Co.,  L.  R.  2  Ch.  App.  201 ; 
three  propositions  the  court  was  unani-  Jones  on  Railroad  Securities,  §  456. 
mous.  The  fourth  was  decided  by  a  18  Stevens  v.  Davison,  18  Grat.  (Va.) 
majority  only.  See  a  criticism  of  this  810;  Davis  v.  Cray,  16  Wall.  203 ;  Bar- 
case  by  Judge  Baxter  in  Garrett  v.  City  ton  v.  Barbour,  104  U.  S.  126,  137,  138. 
of  Memphis,  5  Fed.  R.  860.  19  Hopkins  v.  Worcester  &  Birmingham 

16  Thompson    v.    Allen    County,    115  Canal  Co.,  L.  R.  6  Eq.  437;  Jones  on 
U.  S.  550,  558.  Railroad  Securities,  §  456. 


358  KECEIVERS.  [CHAP.  XVII. 

from  inability,  is  to  place  the  corporation  in  the  hands  of  a 
receiver,  that  its  affairs  may  be  wound  up,  its  debts  discharged, 
and  the  remaining  assets,  if  any  there  be,  distributed  among  its 
stockholders.  Of  the  beneficial  results  of  this  remedy  there  can 
be  little  doubt.  When  it  is  applied  with  despatch,  and  the 
effects  of  the  insolvent  corporation  are  faithfully  used  to  meet 
its  liabilities,  and  its  dead  body  is  buried  out  of  sight  as  soon 
as  possible,  no  objection  can  be  made  to  the  procedure,  and  all 
courts  and  good  citizens  should  contribute,  as  far  as  they  may,  to 
this  desirable  object.  In  regard,  however,  to  a  certain  class  of 
corporations,  —  a  class  whose  operations  are  as  important  to  the 
interests  of  the  community  and  as  intimately  connected  with  its 
business  and  social  habits  as  any  other  —  the  appointment  of 
receivers,  as  well  as  the  power  conferred  on  them,  and  the 
duration  of  their  office,  has  made  a  progress  which,  since  it  is 
wholly  the  work  of  courts  of  chancery  and  not  of  legislatures, 
may  well  suggest  a  pause  for  consideration.  It  will  not  be 
necessary  to  any  observing  mind  to  say  that  I  allude  to  railroad 
corporations.  Of  the  fifty  or  more  who  own  or  have  owned  the 
many  thousand  miles  of  railway  in  my  judicial  circuit,  I  think 
I  speak  within  limits  in  saying  that  hardly  half  a  dozen  have 
escaped  the  hands  of  the  receiver.  If  these  receivers  had  been 
appointed  to  sell  the  roads,  collect  the  means  of  the  companies, 
and  pay  their  debts,  it  might  have  been  well  enough.  But  this 
was  hardly  ever  done.  It  is  never  done  now.  It  is  not  the  pur- 
pose for  which  a  receiver  is  appointed.  He  generally  takes  the 
property  out  of  the  hands  of  its  owner,  operates  the  road  in  his 
own  way,  with  an  occasional  suggestion  from  the  court,  which 
he  recognizes  as  a  sort  of  partner  in  the  business,  sometimes, 
though  very  rarely,  pays  some  money  on  the  debts  of  the  cor- 
poration, but  quite  as  often  adds  to  them,  and  injures  prior 
creditors  by  creating  a  new  and  superior  lien  on  the  property 
pledged  to  them."20  In  a  recent  case,  the  court  refused  to 
appoint  a  receiver  of  a  disused  and  independent  railroad  track 
in  a  case  where  there  was  a  scramble  for  its  possession ;  saying 
in  reference  to  the  power  to  appoint  a  receiver:  "If  we  should 
carry  this  to  the  extent  to  which  you  claim,  we  should  be 
having  this  court  pushing   the  doctrine  of  receivership   to  the 

20  Barton  v.  Barbour,  104  U.  S.  12G,  107,  138,  in  the  dissenting  opinion. 


§  245.]  POWERS    OF   RECEIVERS.  359 

extent  of  making  us  justices  of  the  peace,  and  issuing  peace 
warrants."21 

§  245.  Powers  of  Receivers  in  general.  —  The  powers  of  a  re- 
ceiver, in  the  absence  of  any  special  authority  given  in  the  order 
for  his  appointment,  are  very  limited.  He  can  take  possession  of 
the  things  which  he  is  appointed  to  receive.1  If  any  of  it  is  land 
under  lease  he  can  accept  attornment  and  payment  of  rent  and 
arrears  of  rent  from  the  tenants.2  He  can  give  notice  to  quit  to 
tenants  from  year  to  year,3  and  in  States  where  the  remedy  by 
distress  still  exists,  he  may  distrain  for  rents  not  more  than  one 
year  in  arrear.4  He  may  also  pay  out  small  sums  of  money  in 
customary  repairs  of  the-  property  which  he  holds  in  trust.5 
Otherwise,  he  can  do  nothing  without  the  express  authority  of 
the  court.6  He  cannot  sue  to  recover  debts  or  other  property 
belonging  to  the  estate;7  nor  even,  it  seems,  defend  suits  or 
actions  brought  against  him ; 8  nor  spend  any  money  whatever 
which  belongs  to  the  estate,  except  such  very  small  sums  as 
are  above  referred  to,9  without  an  order  authorizing  him  to  do  so. 
If,  however,  he  does  any  of  these  things  without  leave,  and  the 
court  determines  that  the  money  thus  expended  has  been  bene- 
ficial to  the  estate,  his  expenditures  for  that  purpose  may  be 
allowed  him.10  Otherwise,  lie  must  make  good  all  loss  thereby 
occasioned.11  It  seems  that  an  unauthorized  contract  made  by 
him  with  a  stranger  may  be  ratified  by  an  order  of  the  court 
made  before  the  stranger  has  given  notice  of  his  intention  to 
abandon  it.12  It  seems  that  an  order  giving  a  receiver  authority 
to  sell  carries  with  it  authority  to  execute  and  deliver  to  the  pur- 
chaser a  deed;13  but  if  not,  a  subsequent  confirmation  by  the 
court  of  a  sale  irregularly  made  validates  from  that  time  a  deed 

21  Brewer  and  Treat,  JJ.,  in  St.  Louis,  7  Wynne  v.  Lord  Newborough,  1  Ves. 

K.  C.  &  C.  R.  R.  Co.  v.  Dewees,  23  Fed.  R.  Jr.  164  ;  s.  c.  3  Brown  Ch.  C.  88  ;  Green  v. 

619.  Winter,  1  J.  Ch.  (N.  Y.)  60. 

§  245.    1  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  8  Swaby  v.  Dickon,  5  Simons,  620. 

1087,  1988.  9  Attorney-General  v.  Vigor,  11  Ves. 

2  Codrington   v.   Johnstone,    1    Beav.  563. 

520 ;  McDonnell  v.  White,  11  H.  L.  C.  570.  10  Tempest  v.  Ord,  2  Meriv.  55 ;  Blunt 

3  Doe  v.  Read,  12  East,  57,  59.  v.  Clitherow,  6  Ves.  700. 

4  Pitt  v.  Snowden,  3  Atk.  750;  Bran-  n  Attorney-General  v.  Vigor,  11  Ves. 
don  v,  Brandon,  5   Madd.  473  ;  Davis  v.  563. 

Gray,  16  Wall.  203,  218.  12  Koontz  v.  Northern  Bank,  16  Wall. 

6  Attorney-General  v.  Vigor,  11  Ves.  106;  Smith  v.  McCullough,  104  U.  S.  25, 

563  ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1000.  29. 

6  Davis  v.  Gray,  16   Wall.   203,  218;  13  Koontz  v.  Northern  Bank,  16  Wall. 

Smith  v.  McCullough,  104  U.  S.  25,  29.  196,  201. 


360  RECEIVERS.  [CHAP.  XVII. 

previously  executed  by  the  receiver.14  It  lias  been  said  that,  "  a 
purchaser  under  a  deed  from  a  receiver  is  not  bound  to  examine 
all  the  proceedings  in  the  case  in  which  the  receiver  is  appointed. 
It  is  sufficient  for  him  to  see  that  there  is  a  suit  in  equity,  or  was 
one,  in  which  the  court  appointed  a  receiver  of  property;  that 
such  receiver  was  authorized  by  the  court  to  sell  the  property ; 
that  a  sale  was  made  under  such  authority ;  that  the  sale  was 
confirmed  by  the  court ;  and  that  the  deed  accurately  recites  the 
property  or  interest  thus  sold.  If  the  title  of  the  property  was 
vested  in  the  receiver  by  an  order  of  the  court,  it  would  in  that 
case  pass  to  the  purchaser.  He  is  not  bound  to  inquire  whether  any 
errors  intervened  in  the  action  of  the  court,  or  irregularities  were 
committed  by  the  receiver  in  the  sale,  any  more  than  a  purchaser 
under  execution  upon  a  judgment  is  bound  to  look  into  the 
errors  and  irregularities  of  a  court  on  the  trial  of  the  case,  or  of 
the  officer  in  enforcing  its  process."  15  An  order  authorizing  a 
receiver  to  borrow  money  to  expend  in  building  an  unfinished 
portion  of  a  railroad  does  not  authorize  him  to  contract  for  muni- 
cipal aid  in  such  construction.16  An  order  authorizing  a  receiver 
to  make  a  contract  is  construed  strictly  in  favor  of  the  estate.17 
After  the  execution  of  a  contract  has  been  authorized  by  the 
court,  the  order  will  not  ordinarily  be  revoked  except  in  case  of 
fraud.18  A  receiver  cannot  accomplish  by  estoppel  or  waiver 
what  he  has  no  power  to  do  directfy.19  The  court  may,  however, 
either  in  the  original  order  of  appointment  or  subsequently,  give 
a  receiver  very  extensive  powers.  It  is  usual  in  the  order  ap- 
pointing a  receiver  to  give  him  power  to  bring  and  defend  suits 
or  actions  affecting  the  estate,  and  to  set  and  let  such  of  it  as 
consists  of  land.  Other  and  much  more  extensive  authority, 
such  as  to  borrow  money  needed  for  the  proper  administration 
of  his  trust,  and  issue  as  security  therefor  certificates  giving 
their  owner  a  first  lien  upon  the  estate ; 20  to  contract  for  the 
construction   of    a   bridge ; 21    to   pay   an   employee   his   wages 

14  Koontz  v.  Northern  Bank,  16  Wall.  19  Van  Dyck  v.  McQuade,  85  N.  Y.  616. 
196.  But  see  Central  Trust  Co.  v.  Ohio  Central 

15  Mr.    Justice    Field    in    Koontz    v.  R.  R.  Co.,  23  Fed.  R.  306 ;   Armstrong  v. 
Northern  Bank,  16  Wall.  196,  202.  Armstrong,  L.  R.  12  Eq.  614 ;  Koontz  v. 

16  Smith  v.  McCullough,  104  U.  S.  25, 29.  Northern  Bank,  16  Wall.  196. 

17  Farmers'   L.  &   Tr.  Co.  v.  Logans-  -°  Wallace   v.   Loomis,   97  U.  S.  146. 
port,  C.  &  S.  W.  Ry.  Co.,  4  Fed.  R.  184.  See  §  247. 

18  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Cen-  21  LaCrosse   Railroad   Bridge,  2  Dill, 
tral  Trust  Co.,  22  Fed.  R.  269.     But  see  465. 

Weeks  v.  Weeks,  10G  N.  Y.  626. 


§  246.]        POWERS  OF  RECEIVERS  OF  RAILROADS.  361 

during  the  time  that  he  is  kept  from  work  by  the  result  of  an 
injury  received  while  at  work  for  the  receiver,  without  con- 
tributory negligence,  but  for  which  the  receiver  is  not  responsi- 
ble;22 and  in  Ireland,  to  spend  money  in  relieving  and  giving 
employment  to  poor  tenants,  for  the  reason  that  they  may  be 
enabled  in  the  future  to  pay  their  rent  more  regularly,23  —  have 
been  given  to  receivers.  The  order  appointing  a  receiver  of 
land  usually  contains  a  clause  empowering  him  to  set  and  let 
the  same.24  Even  with  this,  it  seems,  that  without  special 
authority  he  cannot  let  any  part  thereof  so  as  to  bind  the  estate 
for  a  longer  period  of  time  than  is  authorized  by  the  Statute  of 
Frauds;25  but  that  a  lease  made  for  a  longer  time  would  bind  a 
tenant  who  had  accepted  it.2G  It  is  doubtful  whether  a  receiver 
has  the  right  to  use  a  patent  under  a  license  given  the  person 
over  whose  estate  he  was  appointed.27 

§  246.  Powers  of  Receivers  of  Railroads.  —  Very  extensive 
powers  are  often  granted  to  the  receivers  of  railroads.1  The 
Supreme  Court  has  said  of  them,  "  In  the  progress  and  growth 
of  equity  jurisdiction  it  has  become  usual  to  clothe  such  officers 
with  much  larger  powers  than  were  formerly  conferred.  In 
some  of  the  States  they  are  by  statutes  charged  with  the  duty 
of  settling  the  affairs  of  certain  corporations  when  insolvent, 
and  are  authorized  expressly  to  sue  in  their  own  names.  It  is 
not  unusual  for  courts  of  equity  to  put  them  in  charge  of  the 
railroads  of  companies  which  have  fallen  into  financial  embar- 
rassment, and  to  require  them  to  operate  such  roads,  until  the 
difficulties  are  removed,  or  such  arrangements  are  made  that  the 
roads  can  be  sold  with  the  least  sacrifice  of  the  interests  of  those 
concerned.  In  all  such  cases  the  receiver  is  the  right  arm  of 
the  jurisdiction  invoked.  As  regards  the  statutes,  we  see  no 
reason  why  a  court  of  equity,  in  the  exercise  of  its  undoubted 
authority,  may  not  accomplish  all  the  best  results  intended  to  be 
secured  by  such  legislation,  without  its  aid."2  And  in  a  care- 
fully considered  opinion,  Mr.  Justice  Bradley  said :  "  It  may  be 

22  Missouri  Pac.  Ry.  Co.  v.  Texas  &  P.         27  Compare  Montross  v.  Mabie,  30  Fed. 
Ry.  Co.,  33  Fed.  R.  701.  R.  234,  with  Curran  v.  Craig,  22  Fed.  R. 

23  Jackson  i\  Jackson,  2  Hogan,  238.         101. 

»  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1989.  §  246.   »  Davis  v.  Gray,  16  Wall.  203, 

25  Kerr  on  Receivers  (2d  Am.  ed.)  210,  219,  220;    Cowdrey  v.  Railroad   Co.,    1 

211.  Woods,  331,  336. 
88  Dancer  o.  Hastings,  4  Bingham,  2;         2  Mr.  Justice  Swayne  in  Davis  v.  Gray, 

Kerr  on  Receivers  (2d  Am.  ed.)  211.  10  Wall.  203,  219,  220. 


362  RECEIVERS.  [CHAP.  XVII. 

laid  down  as  a  general  proposition  that  all  outlays  made  by  the 
receiver  in  good  faith,  in  the  ordinary  course  with  a  view  to 
advance  and  promote  the  business  of  the  road,  and  to  render  it 
profitable  and  successful  are  fairly  within  the  line  of  discretion 
which  is  necessarily  allowed  to  a  receiver  entrusted  with  the 
management  and  operation  of  a  railroad  in  his  hands.  His 
duties,  and  the  discretion  with  which  he  is  invested  are  very 
different  from  those  of  a  passive  receiver,  appointed  merely  to 
collect  and  hold  monej's  due  on  prior  transactions,  or  rents  ac- 
cruing from  houses  and  lands.  And  to  such  outlaj's  in  ordinary 
course,  may  properly  be  referred,  not  only  the  keeping  of  the 
road,  buildings  and  rolling  stock  in  repair,  but  also  the  provid- 
ing of  such  additional  accommodations,  stock  and  instrumen- 
talities as  the  necessities  of  the  business  may  require,  always 
referring  to  the  court,  or  to  the  master  appointed  in  that  behalf, 
for  advice  and  authority  in  any  matter  of  importance,  which  may 
require  a  considerable  outlay  of  money  in  lump.  And  except 
in  extraordinary  cases,  the  submission  by  the  receiver  of  his 
accounts  to  the  master  at  frequent  intervals,  whereby  the  latter 
may  ascertain  from  time  to  time  the  character  of  the  expendi- 
tures made,  and  disallow  whatever  may  not  meet  with  his 
approval,  will  be  regarded  as  a  sufficient  reference  to  the  court 
for  its  ratification  of  the  receiver's  proceedings.  In  extra- 
ordinary cases,  involving  a  large  outlay  of  money,  the  receiver 
should  always  apply  to  the  court  in  advance  and  obtain  his 
authority  for  the  purchase  or  improvement  proposed."3  This 
language  has  been  thus  construed  in  a  case  in  a  State  court: 
"  This  rule,  it  will  be  observed,  simply  prescribes  what  expendi- 
tures, out  of  the  fund  in  his  hands  as  receiver,  the  court  will 
recognize  as  legitimate  and  proper  when  the  receiver  comes  to 
account  for  the  administration  of  his  trust,  but  nothing  here  said 
gives  the  slightest  support  to  the  notion  that  the  receiver  may, 
in  virtue  of  the  power  of  his  office,  make  a  contract,  without  the 
authority  of  the  court,  which  will  bind  the  trust,  or  which  the 
court  will  be  bound  to  recognize  without  regard  to  its  necessity 
or  propriety.  A  receiver  may,  undoubtedly,  appropriate  moneys 
in  his  hands  belonging  to  the  trust,  to  such  purposes,  connected 
with  the  trust,  as  he  may  think  proper,  always  taking  the  risk 
that  the  court  will  finally  approve  his  action,  but  he  has  no 
3  Cowdrey  v.  Railroad  Co.,  1  Woods,  331,  33G. 


§  246.]  POWERS   OF   RECEIVERS   OF   RAILROADS.  363 

authority  to  bind  the  trust  by  contract  without  the  authority  of 
the  court.  Until  his  contracts  are  approved  or  ratified  by  the 
court,  the  court  is  at  liberty  to  deal  with  them  as  to  it  shall 
appear  to  be  just,  and  may  either  modify  them,  or  disregard 
them  entirely.  This,  in  my  judgment,  is  the  only  safe  rule 
which  can  be  adopted."4  A  loan  to  a  receiver  whom  the  court 
has  not  authorized  to  borrow  money  will  be  denied  priority.0 
It  has  been  held  that  the  court  has  power  to  authorize  the 
receiver  of  a  railroad  company  under  proceedings  for  a  fore- 
closure, to  ratify  a  contract  previously  made  by  the  corporation 
giving  a  telegraph  company  certain  privileges  upon  its  road, 
and  that  the  contract  thus  ratified  will  be  binding  upon  pur- 
chasers of  the  railroad  at  a  foreclosure  sale.6  A  receiver  may 
be  authorized  to  complete  the  construction  of  a  line  of  railroad, 
and  to  borrow  money  for  that  purpose.7  A  receiver  of  a  railroad 
may  be  authorized  to  purchase  a  lien  upon  part  of  its  property, 
and  to  assume  a  lease  of  a  connecting  railway.8  The  rules  which 
should  regulate  a  receivership  of  a  consolidated  railroad  holding 
leased  lines  with  separate  mortgages  upon  the  different  branches, 
as  well  as  a  general  mortgage  upon  the  whole  system,  have  been 
recently  stated  and  applied  in  an  opinion  of  Judge  Brewer,  deliv- 
ered when  denying  an  application  by  a  receiver  of  such  a  system 
of  railroads  for  leave  to  reject  such  leased  roads  as  were  unprofit- 
able :  "  This  Wabash  road  is  composed  of  many  subdivisions. 
While  it  is  a  single  corporation  to-day,  yet  into  it  have  passed 
many  corporations,  and  many  separate  railroad  properties.  In 
administering  such  a  consolidated  property,  the  court  must  look 
at,  not  merely  the  interest  of  the  mortgagee  in  this  general  mort- 
gage, or  of  the  mortgagor  as  a  single  entity  or  corporation,  but  also 
the  separate  and  sometimes  conflicting  interests  of  the  various 
subdivisions  and  their  respective  incumbrances  ;  and,  back  of 
all  that,  the  duty  which  every  railroad  corporation  owes  to   the 

*  Van  Fleet,  V.C.,  Chancellor  Runyon,  104  U.  S.  25;   Allen   v.   The   Dallas   & 

concurring,  Lehigh  Coal  &  Navigation  Co.  Wichita  R.  R.  Co.,  3  Woods,  316. 

v.  Central  R.  R.  of  N.  J.,  35  N.  J.  Eq.  426,  s  Farmers'  Loan  &   Trust  Co.  v.  Bur- 

429.    To  a  similar  effect  is  Union  Trust  lington  &  S.  W.  Ry.   Co.,  32  Fed.  R.  805. 

Co.  v.  111.  Midland  Ry.  Co.,  117  U.  S.  434.  See   also  Central  Trust  Co.  v.  Wabash, 

6  Union  Trust  Co.  v.  111.  Midland  Ry.  St    L.  &  P.  Ry.  Co.,  Gilman  Intervenor, 
Co.,  117  U.  S.  434,  477.  34  Fed.  R.   259 ;   Central   Trust  Co.  v. 

0  W.  U.  Tel.  Co.  v.  Atlantic  &  Pacific  Wabash,  St.  L.  &  P.  Ry.  Co.,  23  Fed.  R. 

Tel.  Co.,  7  Biss.  367.  863;  Easton  v.  Houston  &  T.  C  Ry.  Co., 

7  Kennedy  v.  St.  Paul  &  P.  Ry.  Co  ,  2  38  Fed.  R.  784. 
Dill.  448.     See  also  Smith  v.  McCullough, 


364  RECEIVERS.  [CHAP.  XVII. 

public.  For  underlying  the  rule  which  the  supreme  court  has 
laid  down  in  respect  to  the  payment,  by  receivers  when  they 
take  possession  of  the  railroad  property,  of  prior  unsecured 
debts  recently  accrued,  runs  the  thought,  as  expressed  by  the 
supreme  court,  that  a  railroad  corporation  owes  a  duty  to  the 
public  which  has  given  it  its  franchise  and  enabled  it  to  con- 
struct its  road  ;  the  duty  of  operating  that  road  for  the  benefit 
of  the  public.  While  that  may  not  be  what  you  call  an  absolute 
duty,  enforceable  under  all  circumstances,  it  is  still  a  duty  to  be 
regarded  and  enforced  by  the  courts  when  they  take  possession 
of  railroads  through  their  officers.  And  that  duty  is  not  limited 
to  the  operation  of  merely  that  particular  fragment  of  a  road 
which  is  pecuniarily  profitable  in  its  operations,  but  it  extends 
to  the  road  as  an  entirety,  and  to  all  its  branches —  all  its  parts  ; 
differing  in  that  particular  from  the  duty  which  would  rest  upon 
the  court  if  it  had  simply  taken  possession  of  property  used 
for  private  purposes,  manufacturing  or  otherwise,  where  the 
single  question  might  well  be  said  to  be  one  of  pecuniary  profit. 
This  Wabash  road,  as  a  system,  was  in  operation,  a  going  con- 
cern, from  one  end  to  the  other ;  as  such,  discharging  its  duties 
as  best  it  could  to  its  various  creditors.  This  court,  at  the 
instance  of  the  corporation,  and  to  preserve  the  integrity  of  the 
system,  took  possession  of  it  by  its  receivers.  It  took  possession 
of  it  as  a  going  concern,  and,  so  far  as  is  reasonable  and  practi- 
cable, it  should  continue  it  as  a  going  concern  until  it  surrenders 
it  to  whoever  may  be  the  purchasers  or  future  holders  of  it. 
With  that  preface,  and  calling  these  separate  branches  which 
have  passed  into  this  consolidated  road,  subdivisions;  since 
some  have  passed  in  by  way  of  lease  and  others  by  way  of 
consolidation,  subject  to  separate  mortgages,  we  pass  orders  sub- 
stantially as  follows :  The  first  is  one  which  has  already  been 
entered,  and  we  simply  emphasize  it  by  repeating  it,  that  sub- 
divisional  accounts  must  be  kept  separately.  That  was  an  or- 
der passed  by  Brother  Treat  at  the  very  outset  of  this  receiver- 
ship, in  order  that  the  particular  equities  of  each  one  of  these 
divisions  as  between  themselves,  might  be  ascertained.  2.  Where 
any  subdivision  earns  a  surplus  over  expenses,  the  rental  or 
subdivisional  interest  will  be  paid  to  the  extent  of  the  surplus, 
and  only  to  the  extent  of  the  surplus.  Any  part  diversion  of 
such  surplus  for  general  operating  expenses  will  be  made  good 


§  247]  receivers'  certificates.  365 

at  once,  and,  if  need  be,  by  the  issue  of  receivers'  certificates.  .  .  . 
3.  Where  a  subdivision  earns  no  surplus,  simply  pays  operating 
expenses,  no  rental  or  subdivision al  interest  will  be  paid.  If 
the  lessor  or  the  subdivisional  mortgagee  desires  possession  or 
foreclosure,  he  may  proceed  at  once  to  assert  his  rights.  While 
the  court  will  continue  to  operate  such  subdivision  until  some 
application  be  made,  yet  the  right  of  a  lessor  or  mortgagee  whose 
rent  or  interest  is  unpaid  to  insist  upon  possession  or  foreclosure 
will  be  promptly  recognized.  That,  it  is  true,  may  work  a  dis- 
ruption of  the  system,  as  evidenced  by  the  movement  just  made 
in  respect  to  this  Cairo  division  ;  but  the  proceeding  for  disrup- 
tion will  come  from  the  subdivisions.  The  court  is  not  slough- 
ing off  branches,  tearing  the  system  in  two;  but  the  disruption, 
if  it  comes,  will  come  from  those  who  seek  separation,  and  have 
a  legal  right  so  to  do.  4.  Where  a  subdivision  not  only  earns  no 
surplus,  but  fails  to  pay  operating  expenses,  as  in  the  St.  Joseph 
&  St.  Louis  branch,  the  operation  of  the  subdivision  will  be 
continued,  but  the  extent  of  that  operation  will  be  reduced  with 
an  unsparing  though  a  discriminating  hand ;  that  is,  if  a  subdi- 
vision does  not  earn  operating  expenses,  and  the  receivers  are 
running  two  trains  a  day,  then  lop  one  of  them  off.  If  they  are 
running  one  train  a  day,  and  still  it  does  not  pay,  then  run  one 
train  in  two  days.  While  the  court  will  endeavor  to  keep  that 
subdivision  in  operation,  it  will  make  the  burden  of  it  to  the 
consolidated  corporation,  and  to  all  the  other  interests  put  into 
that  consolidated  corporation  a  minimum."9 

§  247.  Receivers'  Certificates.  —  Where  it  is  absolutely  neces- 
sary to  raise  money  for  the  preservation  of  the  property  in  his 
hands,  a  receiver  may  be  empowered  by  the  court  to  issue  certi- 
ficates which  give  their  owners  a  lien  upon  the  property  prior 
to  that  held  by  any  persons  except  those  whose  claims  are  para- 
mount to  the  rights  of  the  parties  to  the  suit.1  Such  certificates 
are  usually  issued  only  in  suits  for  the  foreclosure  of  railroad 
or  telegraph  mortgages,  in  order  to  raise  money  for  repairs,  or  to 

9  Brewer,  J.,  Treat,  J.,  concurring ;  in  286  ;  Stanton  v.  Ala.  &  Chattanooga  It}-. 

Central  Trust  Co.  v.  Wabash,  St.  L.  &  P.  Co.,  2  Woods.  506 ;  Kennedy  v.  St.  Paul 

lly.  Co.,  23  Fed.  R.  863,  865-867.  &  P.  R.  R.  Co.,  2  Dill.  448;   Hoover  v. 

§247.   1  Meyer  v.  Johnston,    53  Ala.  Montclair&  Greenwood  Lake  R.  R.  Co.,  29 

237  ;  Jerome  v.  McCarter,  94  U.  S.  734 ;  N.  J.  Eq.  4  ;  Coe  v.  N.  J.  Midland  Ry.  Co., 

Wallace  v.  Loomis,  97  U.  S.  146 ;  Milten-  27  N.  J.  Eq.  37  ;  Union  Trust  Co.  v.  Illi- 

bcrger  v.  Logansport  Ry.  Co.,  106  U.  S.  nois  Midland  Ry.  Co  ,  117  U.  S.  434. 


366  EECEIVEES.  [CHAP.  XVII. 

defray  operating  expenses,2  or  to  discharge  claims  having  an 
equitable  preference  to  that  of  the  party  at  whose  instance  the 
receiver  was  appointed,2  or  to  restore  to  the  rightful  owners  so 
much  of  the  income  as  the  receiver  has  improperly  applied  to  the 
foregoing  purposes.4  In  a  few  cases,  receivers  have  been  author- 
ized thus  to  borrow  money  in  order  to  complete  the  construction 
of  railroads,  and  save  from  forfeiture  land  grants  and  municipal 
subscriptions.5  Certificates  have  been  issued  to  pay  interest  upon 
a  divisional  mortgage  prior  to  that  to  foreclose  which  the  suit 
was  brought.6  Where  the  net  earnings  of  a  railroad  are  sufficient 
to  defray  current  expenses,  the  court  will  not  authorize  the  issue 
of  receivers'  certificates  merely  for  the  sake  of  paying  interest 
upon  the  mortgage  under  foreclosure.7  It  has  been  said  to  be 
doubtful  whether  the  court  has  the  power  to  authorize  a  receiver 
to  issue  car-trust  certificates  secured  by  a  lien  upon  the  cars 
which  are  thus  bought,  and  payable  in  ten  annual  instalments.8 
The  power  of  courts  of  equity  to  issue  receivers'  certificates  is 
of  modern  origin,9  has  been  severely  criticised,10  and  should  be 
exercised  with  great  reluctance.11  A  judge  who  had  never 
authorized  the  issue  of  a  receiver's  certificate,  said  :  "  When  the 
road  cannot  be  kept  running  without  its  exercise,  except  to  a 
limited  extent,  the  safe  and  sound  practice  is  to  discharge  the 
receiver  or  stop  running  the  road  and  speed  the  foreclosure."  n 
Without  leave  from  the  court,  a  receiver  has  no  power  to  pledge 

2  Jerome  v.  McCarter,  94  U.  S.  734  ;  8  Taylor  v.  Phila.  &  Reading  R.  R.  Co., 
Wallace  v.  Loomis,  97  U.  S.  146;  Milten-     9  Fed.  R.  1. 

herger  v.  Logansport  Ry.  Co.,  106  U.  S.  9  Meyer  v.  Johnston,  53  Ala.  237  ;  Coe 

286.  v.  N.  J.  Midland  Ry.  Co.,  27  N.  J.  Eq.  37  ; 

3  Miltenberger  i\  Logansport  Ry.  Co.,  Hoover  v.  Montclair  &  Greenwood  Lake 
106  U.  S.  286 ;  Taylor  v.  Phila.  &  Read-  Ry.  Co.,  29  N.  J.  Eq.  4  ;  Jerome  v.  Mc- 
ing  R.  R.  Co.,  7  Fed.  R.  377  ;  Skiddy  v.  Carter,  94  U.  S.  734;  Wallace  v.  Loomis, 
Atlantic,  M.  &  0.  R.  R.  Co.,  3  Hughes,  97  U.  S.  146. 

320.  10  Barton  v.  Barbour,  104  U.   S.  126, 

4  Central  Trust  Co.  v.  Wabash,  St.  L.  138;  Credit  Co.  of  London  v.  Arkansas 
&  P.  Ry.  Co.,  23  Fed.  R.  863.  Cent.  R.  R.  Co.,  15  Fed.  R.  46. 

5  Kennedy  v.  St.  Paul  &  P.  R.  R.  Co.,  «  Wallace  v.  Loomis,  97  U.  S.  146, 
2  Dill.  448 ;  Miltenberger  v.  Logansport  163;  Shaw  v.  Railroad  Co.,  100  U.  S. 
Ry.  Co.,  106  U.  S.  286,  294.  295.  See  also  605,  612 ;  Taylor  v.  Phila.  &  Reading 
Smith  v.  McCullough,  104  U.  S.  25,  29.  R.  R.  Co.,  9  Fed.  R.  1 ;  Credit  Co.  of 
But  see  Investment  Co.  v.  Ohio  &  N.  W.  London  v.  Arkansas  Cent.  R.  R.  Co.,  15 
R.  Co.,  36  Fed.  R,  48.  Fed.  R.  46. 

6  Skiddy  v.  Atlantic,  Miss.,  &  O.  R.  R.  12  Caldwell,  J.,  in  Credit  Co.  of  London 
Co.,  3  Hughes,  320,  341.  v.  Arkansas  Cent.  R.  R.  Co,  15  Fed.  R. 

7  Taylor  v.  Phila.  &  Reading  R.  R  Co.,  46,  49. 
9  Fed.  R.  1. 


§  247.]  RECEIVERS'  CERTIFICATES.  367 

the  trust  estate,  nor  to  make  a  contract  for  a  loan  of  money 
which  will  bind  the  estate  13  or  even  the  proposed  lender.14  An 
order  for  the  issue  of  receivers'  certificates  is  usually  granted 
only  upon  notice  to  all  parties  in  interest.15  Those  who  have 
not  received  notice  may  move  to  set  aside  the  order  and  to 
cancel  the  certificates,  if  they  act  as  soon  as  they  learn  what  was 
done.16  A  very  short  delay  after  knowledge  that  such  an  order 
has  been  granted  will  estop  a  party  from  objecting  to  the  validity 
of  certificates  issued  in  pursuance  of  it.17  Receivers'  certificates 
are  assignable,  but  not  negotiable.18  It  has  been  said  that  the 
power  to  issue  them  is  a  personal  one  which  the  receiver  cannot 
delegate.19  Where  a  receiver  issued  a  certificate  to  a  person 
named  therein  as  payee,  for  negotiation  and  sale,  and  the  latter 
never  paid  over  any  money  on  account  of  it ;  a  purchaser  of  the 
certificate  at  much  less  than  par,  who  was  unable  to  prove  that 
the  person  from  whom  he  bought  it  had  paid  anything  therefor  to 
the  person  named  as  payee,  was  not  allowed  to  receive  anything 
from  the  receiver  on  account  of  the  same.20  The  purchaser  at  a 
judicial  sale  made  subject  to  the  payment  of  receivers'  certificates 
cannot  contest  their  validity.21  A  receiver  is  personally  respon- 
sible for  a  fraudulent  statement  in  a  certificate  which  he  issues.22 
In  at  least  one  case,  the  court  ordered  the  receiver  to  execute 
a  mortgage  to  secure  the  receivers'  certificates.23  But,  ordinarily, 
the  order  for  the  issue  of  the  certificates  provides  that  they  shall 
constitute  a  lien  upon  the  property  superior  to  all  prior  incum- 
brances, which  is  sufficient.24  In  one  case  the  order  simply  stated 
that  the  certificates  should  be  payable  out  of  the  income  of  the 
property,  and  "  be  provided  for  by  this  court  in  its  final  order  in 

«  Union  Trust  Co.  v.  111.  Midland  Ry.  Co.,  95  111.  134  ;  Stanton  v.  Ala.  &  C.  R.  R. 

Co.,  117  U.  S.  4:34.  Co.,  2  Woods,  506 ;  Central  Nat,  Bank  v. 

14  Smith  v.  MeCulIough,  104  U.  S.  25,  Hazard,  30  Fed.  R.  484. 
29.  19  Union  Trust  Co.  of  N.  Y.  v.  Chicago 

"  Ex  parte  Mitchell,  12  S.  C.  83.     But  &  Lake  Huron  R.  R.  Co.,  7  Fed.  R.  513. 
see  Miltenberger  v.  Logansport  Ry.  Co.,         2)  Union  Trust  Co.  of  N.  Y.  v.  Chicago  & 

100  U.  S.  280,  297,  298.  Lake  Huron  R.  R.  Co.,  7  Fed.  R.  513. 

16  Hervey  v.  111.  Midland  Ry.  Co.,  28  21  Central  Nat.  Bank  v.  Hazard,  30  Fed. 
Fed.  R.  169.  R.  484. 

17  Miltenberger  v.  Logansport  Ry.  Co.,  22  Bank  of  Montreal  v.  Thayer,  7  Fed. 
106  U.  S.  286 ;   Union  Trust  Co.  v.  111.  R.  622. 

Midland  Ry.  Co.,  117  U.  S.  434.  23  Jerome  v.  McCarter,  04  U.  S.  734. 

18  Union  Trust  Co.  of  N.  Y.  v.  Chicago  24  For  a  good  form  of  an  order  and  a 
&  Lake  Huron  R.  R.  Co.,  7  Fed.  R.  513  ;  certificate,  see  Kennedy  v.  St.  Paul  &  P. 
Stanton  v.  Ala.  &  C.  R.  R.  Co.,  31  Fed.  R.  R.  R.  Co.,  2  Dill.  448. 

685 ;  Turner  v.  Peoria  &  Springfield  R.  R. 


368  RECEIVERS.  [CHAP.  XVII. 

said  cause,  unless  paid  by  the  receiver  out  of  the  income  of  said 
road  as  aforesaid."  25  A  receiver  appointed  in  a  suit  for  the  fore- 
closure of  a  second  railroad  mortgage  may  be  authorized  to  issue 
certificates  constituting  a  prior  lien  to  that  of  the  first  mortgage, 
provided  the  mortgagor  is  in  default  as  to  that,  and  the  first  mort- 
gagee is  a  party  to  the  suit.26  An  order  authorizing  the  issue  of 
receivers'  certificates  is  appealable  to  the  Supreme  Court  of  the 
United  States.27 

§  248.  Advice  to  Receivers.  —  Receivers  may  apply  to  the  court 
for  instructions  and  advice,  both  generally  and  in  particular 
cases.1  "  The  value  of  such  advice  depends :  If  there  are 
parties  in  interest,  and  they  have  their  day  in  court,  the  advice 
may  be  decisive.  But  if  the  matter  is  ex  parte  the  value  of  the 
advice  depends  largely  upon  the  information  and  ability  of  the 
judge,  and  is  probably  binding  only  on  the  receivers,  for  the  judge 
may  change  his  mind  on  hearing  full  argument."2  It  has  been 
said,  that  from  the  nature  of  things  the  court  cannot  determine 
how  many  trains  a  receiver  shall  run,3  or  select  his  employees,4 
although  it  may  regulate  his  treatment  of  them.5  The  court  has, 
however,  at  a  receiver's  request,  instructed  him  what  rates  to 
charge;6  and  has  directed  him  not  to  obey  so  much  of  a  State 
statute  as  forbade  a  less  charge  for  transport  over  that  part  of  a 
railroad  which  competed  with  transportation  by  water,  than 
over  other  parts  of  the  same  length,  the  traffic  upon  which  was 
not  affected  by  such  competition,  in  a  case  where  it  was  held 
that  the  charter  of  the  corporation  gave  it  a  contract  right 
to  charge  a  reasonable  rate,  upon  the  ground  of  the  unconsti- 
tutionality of  the  statute  ;  and  this  when  the  petition  for  instruc- 
tions was  filed  a  month  before  the  act  went  into  operation.7 
When  a  railroad  was  in  the  hands  of  a  receiver  appointed  in 
a  suit  to  foreclose  a  mortgage,  the  court  refused  to  entertain 

25  Miltenberger  v.  Logansport  Ry.  Co.,  2  Missouri  Pac.  Ry.  Co.  v.  Texas  &  P. 
106  U.  S.  286,  298.  Ry.  Co.,  31  Fed.  R.  862. 

26  Miltenberger  v.  Logansport  Ry.  Co.,  3  Brewer,  J ,  Treat,  J.  concurring,  in 
106  U.  S.  286.  Central   Trust  Co.  v.  Wabash,  St.  L.  & 

2"  Farmers'  Loan   &  Trust  Co.,  Peti-  P.  Ry.  Co.,  23  Fed.  R.  863,  867. 
tioner,  129  U.  S.  206.  *  Brewer,  J.  in  Frank  v.  Denver   & 

§  248.   i  Frank  v.  Denver  &  R.  G.  Ry.  R.  G.  Ry.  Co.,  23  Fed.  R.  757,  764. 
Co.,  2.3  Fed.  R.  757  ;  Ex  parte  Koehler,  »  Frank  v.  Denver  &  R.  G.  Ry.  Co.,  23 

23    Fed.  R.    523;    Missouri    Pacific    Ry.  Fed.  R.  757,  764. 

Co.  ».  Texas  &  Pacific  Ry.  Co.,  31  Fed.  6  Ex  parte  Koehler,  23  Fed.  R.  529. 

R.  862.  7  Ex  parte  Koehler,  23  Fed.  R.  529. 


§  249.]  LITIGATION   BY   RECEIVERS.  3G9 

a  petition  by  the  mortgagor  asking  instructions  as  to  the  pro- 
priety of  postponing  a  meeting  of  its  stockholders,  and  permission 
to  postpone  the  meeting.8 

§  249.  Litigation  by  Receivers.  —  The  causes  of  action  which 
a  receiver  can  enforce  are  of  two  kinds,  —  those  which  belonged 
to  the  estate  of  which  he  has  charge  before  it  was  entrusted 
to  him,  and  those  which  have  accrued  since  his  appointment. 
As  has  been  said  before,  he  cannot  sue  upon  either  without  the 
leave  of  the  court  which  appointed  him.1  A  suit  upon  a  cause 
of  action  which  belonged  to  the  estate  before  his  appointment  is 
brought  in  the  name  of  the  legal  owner  of  the  estate  ;2  unless, 
as  is  not  uncommon,  the  order  authorizes  the  receiver  to  sue  in 
his  own  name.3  In  the  former  case,  the  person  whose  name 
is  used  is  indemnified  out  of  the  fund  for  all  costs  to  which  he 
is  thereby  made  liable.4  Receivers  of  corporations  are  usually 
authorized  to  sue  in  the  name  of  the  corporation.5  Costs  recov- 
ered against  a  receiver  in  an  action  brought  by  him  in  his  offi- 
cial capacity,  are  entitled  upon  the  distribution  of  the  fund  to  a 
priority  over  claims  that  existed  against  it  before  the  receiver's 
appointment.6  In  the  conduct  of  litigation,  as  in  every  other  pro- 
ceeding by  him,  a  receiver  is  under  the  constant  supervision  of 
the  court.7  He  is  not  bound  by  a  stipulation  which  is  not  ad- 
vantageous to  the  estate,  made  by  himself  or  his  counsel  without 
the  sanction  of  the  court.8  He  cannot  waive  a  defense,  whether 
technical  or  substantial.9  He  may  be  allowed  to  discontinue 
without  costs  an  action  honestly  but  erroneously  begun  by  him.10 
The  rights  of  a  receiver  are  in  general  no  greater  than  those  of 
the  person  whose  estate  he  holds.11     Thus,  a  receiver  of  an  insol- 

8  Taylor  v.  Phila.  &  Reading  R.  R.  Co.,  6  Camp  v.  Receivers  of  the  Niagara 

7  Fed.  R.  377.  Bank,  2  Paige  (N.  Y.),  283;  Columbian 

§  249.   1  Wynne  v.  Lord  Newborough,  Ins.  Co.  v.  Stevens,  37  N.  Y.  536 ;  Locke 

1  Ves.  Jr.  164  ;  s.  c.  3  Brown  Ch.  C.  88;  v.  Covert, 42  Hun  (49  N.  Y.S.  C  R.),  484. 

Green  v.  Winter,  1  J.  Ch.  (N.  Y.)  60.  7  Van  Dyck  v.  McQuade,  85  N.  Y.  616. 

2  Dick  v.  Struthers,  25  Fed.  R.  103  ;  8  Van  Dyck  v.  McQuade,  85  N.  Y.  616. 
Dick  i'.  Oil- Well  Supply  Co.,  25  Fed.  R.  9  McEvers  v.  Lawrence,  Hoffman  Ch. 
105;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1977,  (N.  Y.)  172;  Keiley  v.  Dusenbury,  10  J.  & 
1991.  S.  (N.  Y.  Superior  Ct.)  238 ;  s.  c.  77  N.  Y. 

3  Davis  v.  Gray,  16  Wall.  203.  See  597;  Van  Dyck  v.  McQuade,  85  N.  Y.  616. 
Frankle  v.  Jackson,  30  Fed.  R.  398.  10  St.  John  v.  Denison,  9  How.  Pr.  (N.Y.) 

4  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1991.  343;  Reeder  v.  Seely,  4  Cowen.  548;  Ar- 

5  Frankle  ».  Jackson,  30  Fed.  R.  398;  noux  v.  Steinbrenner,  1  Paige  (N.  Y.),  82. 
Davis  v.  Gray,  16  Wall.  203  ;  Harland  v.  n  Jacohson  v.  Allen,  12  Fed.  R.  454, 457. 
Bankers'  &  Merchants'  Tel.  Co.,  33  Fed.  But  see  Hart  r».  Barney  &  S.  Manuf.  Co., 
R.  199.  7  Fed.  R.  543. 

24 


370  RECEIVERS.  [CHAP.  XVII. 

vent  corporation  appointed  in  a  creditor's  suit  cannot  "  enforce 
a  collateral  obligation  given  to  a  creditor  or  to  a  body  of  credit- 
ors by  a  third  person  for  the  payment  of  the  debts  of  the  insol- 
vent ;  " 12  for  example,  a  statutory  liability  of  stockholders  to 
creditors.13  It  has,  however,  been  said:  "It  is  the  settled  doc- 
trine that  the  receiver  of  an  insolvent  corporation  represents  not 
only  the  corporation  but  also  creditors  and  stockholders,  and  that 
in  his  character  as  trustee  for  the  latter,  he  may  disaffirm  and 
maintain  an  action  as  receiver  to  set  aside  illegal  or  fraudulent 
transfers  of  the  property  of  the  corporation  made  by  its  agents 
or  officers,  or  to  recover  its  funds  or  securities  invested  or  mis- 
applied." u  The  defendant  to  an  action  by  the  receiver  of  an 
insolvent's  estate  cannot  set  off  claims  against  the  insolvent 
which  have  been  assigned  to  him  since  the  application  for  the 
receiver's  appointment.15  A  receiver  has  no  absolute  right  to  sue 
in  the  courts  of  a  sovereignty  foreign  to  that  from  which  he  holds 
his  authority.16  He  may  sue  in  a  foreign  court  upon  a  judg- 
ment which  he  has  recovered  in  the  court  which  appointed 
him.17  By  comity  he  is  usually  allowed  to  sue  in  a  foreign 
court,18  unless  by  so  doing  he  would  interfere  with  a  preference 
given  to  domestic  creditors  by  the  laws  or  public  policy  of  the 
State  wherein  he  brings  the  action.19  In  this  respect,  it  seems, 
that  a  court  of  the  State  within  which  a  Federal  court  is  held 
is  considered  as  foreign  to  the  latter,  at  least  when  sitting  in 
bankruptcy.20  A  substituted  trustee  can,  however,  sue  in  a 
foreign  jurisdiction,  even  though,  when  the  court  appointed  him, 
it  required  him  to  give  a  bond  and  to  account  to  itself  in  the 
same  manner  as  a  receiver.21     It  has  been  said,  that  "  where 

12  Wallace,  J.,  in  Jacobson  v.  Allen,  12  v.  Durant,  19  Fed.  R.  471,  476 ;  Holmes  v. 
Fed.  R.  454.  Sherwood,  16  Fed.  R.  725;  s.  c.  8  McCra- 

13  Jacobson  v.  Allen,  12  Fed.  R.  454.  ry,  405. 

14  Andrews,  J.,  in  Attorney-General  v.  17  Wilkinson  v.  Culver,  25  Fed.  R.  639. 
Guardian  Mutual  Life  Ins.  Co.,  77  N.  Y.  18  Ex  parte  Norwood,  3  Biss.  504;  Hunt 
272, 275.  See  also  Gillet  v.  Moody,  3  N.  Y.  v.  Jackson,  5  Blatcbf .  349  ;  Cuykendall  v. 
479,  488  ;  Talmage  v.  Pell,  7  N.  Y.  328  ;  Miles,  10  Fed.  R.  342  ;  Hurd  v.  Elizabeth, 
Whittlesey  v.  Delaney,  73  N.  Y.  571;  41  N.  J.  Law  (12  Vroom),  1;  Bank  v. 
National  Trust  Co.  v.  Miller,  33  N.  J.  Eq.  McLeod,  38  Ohio  St.  174.  But  see  Booth 
155,  158;  Jacobson  v.  Allen,  12  Fed.  R.  v.  Clark,  17  How.  322;  Holmes  v.  Sher- 
454,  455.  wood,  16  Fed.  R.  725. 

»  /„  re  Van  Allen,  37  Barb.  (N.Y.)  225,  19  Booth  v.  Clark,  17  How.  322  ;  Brig- 

231 ;  Van  Dyck  v.  McQuade,  85  N.Y.  616.  ham   v.  Luddington,    12    Blatcbf.    237  ; 

is  Booth  v.  Clark,  17  How.  322  ;  Brig-  Olney  v.  Tanner,  10  Fed.  R.  101. 

ham    v.  Luddington,   12    Blatcbf.    237  ;  29  Olney  v.  Tanner,  10  Fed.  R.  101. 

Oluey  v.  Tanner,  10  Fed.  R.  101 ;  Hazard  2i  Glenn  v.   Soule,  22   Fed.   R.    417  ; 


§  249.]  LITIGATION   BY   RECEIVERS.  371 

property,  in  the  possession  of  a  third  person,  is  claimed  by  the 
receiver,  the  complainant  must  make  such  person  a  party  by 
amending  the  bill,  or  the  receiver  must  proceed  against  him 
by  suit  in  the  ordinary  way." <22  Otherwise,  a  receiver  is  espe- 
cially favored  in  the  enforcement  of  causes  of  action  arising  after 
his  appointment.  He  can,  upon  motion  or  petition  in  the  suit 
wherein  he  is  appointed,  obtain  injunctions  to  prevent  disobedi- 
ence to  contracts  made  with  him,23  or  prevent  interference  with 
property  in  his  possession,24  whether  the  person  enjoined  is  a 
party  to  the  suit  or  not.  In  nearly  every  case  interference  with 
a  receiver  in  the  discharge  of  his  duties  is  a  contempt  of  court, 
even  when  no  injunction  expressly  forbidding  it  has  been  issued.25 
For  example,  striking  laborers  have  been  adjudged  guilty  of 
contempt  for  attempting  to  prevent  employees  of  a  receiver  of 
a  railroad  from  working  for  him.26  In  one  of  these  cases  it  was 
eaid :  "  If  the  testimony  makes  it  clear  that  when  these  parties 
went  in  such  numbers,  and  conducted  themselves  in  such  a  way, 
that  while  they  simply  said,  '  Please  get  off  this  engine,'  or  '  We 
want  you  to  get  off  this  engine,'  they  intended  to  overawe,  — 
intended,  by  the  demonstrations  which  they  made,  to  impress 
upon  the  minds  of  the  engineers  and  train-men  that  personal 
prudence  compelled  them  to  leave, —  why,  then  the  government 
has  made  out  its  case.  As  my  brother  Treat  said  in  a  similar 
case,27  that  we  had  before  us  in  St.  Louis,  a  request,  under  these 
circumstances,  is  a  threat.  Every  sensible  man  knows  what  it 
means,  and  courts  are  bound  to  look  at  things  just  as  they  are, 
to  pass  upon  facts  just  as  they  are  developed,  to  treat  the  conduct 
of  men  just  as  it  is,  and  to  impute  to  them  that  intention  which 
their  acts  and  their  conduct  disclose  was  their  intention,"  ^ 
And  in  another  case  the  same  judge  said:  "Now,  if  a  party 
engaged  in  a  lawful  undertaking  unintentionally  interferes  with 
some  of  the  officers  of  this  court,  and  obstructs  them  in  the  dis- 

Holmes  v.  Sherwood,  16  Fed.  R.  725;  8.  c.         ™  Thompson    v.   Scott,    4  Dill.    508; 

o  McCrary,  405.  Davis  v.  Gray,  16  Wall.  203,  218. 

'--  Mr.    Justice    Swayne    in   Davis   v.        2«  Secor  v.  Toledo,  P.  &  W.  R.  R.  Co.,  7 

Gray,  16  Wall.  203,  218,  citing  Parker  v.  Biss.  513;  King  v.  Ohio  &  M.  Ry.  Co.,  7 

Browning,  8  Paige  (N.  Y.),   388;   Noe  v.  Biss.  529;  In  reDoolittle,  23  Fed.  R.  544; 

Gibson,  7  Paige  (N.  Y.),  513.  United   States  v.  Kane,  23  Fed.  R.  748; 

23  Walton  v.  Johnson,  15  Simons,  352.  In  re  Higgins,  27  Fed.  R.  443. 

2*  Angel  v.  Smith,  9  Ves.  335  ;  Kerr  on         2;  In  re  Doolittle,  23  Fed.  R.  544,  548. 
Receivers    (2d   American   edition),    177-         28  Brewer,  J.,  in  United  States  v.  Kane, 

181.  23  Fed.  R.  748,751. 


372  RECEIVERS.  [CHAP.  XVII. 

charge  of  their  duties,  this  court  is  not  tenacious  of  any  mere 
prerogative,  and  would  let  such  action  pass  almost  without 
notice  ;  but  where  parties  are  engaged  in  that  which  is  of  itself 
unlawful,  in  doing  that  which  they  have  no  right  to  do,  and  in  so 
doing  obstruct  the  officers  of  the  court  although  intending  no 
contempt,  that  is  a  very  different  thing."  ^ 

§  250.  Duties  of  Receivers.  —  A  receiver  holds  the  property  of 
which  he  is  given  the  care  in  trust  for  all  persons  interested 
therein,  whether  parties  to  the  suit  or  not,1  provided  that  they 
do  not  claim  it  by  a  title  paramount  to  his  own.2  His  duties, 
therefore,  are  substantially  those  of  a  trustee,  although  his  pow- 
ers are  usually  more  limited ;  and  the  decisions  concerning  the 
duties  and  liabilities  of  trustees,  executors,  administrators,  and 
assignees  in  bankruptcy  and  insolvency  are  often  of  service  in 
determining  those  of  a  receiver.3  A  receiver's  first  duty  after 
his  appointment  is  to  take  possession  of  the  property  entrusted 
him  by  the  order,  using  all  the  powers  therein  given  him.4  If 
any  of  it  is  under  lease  he  should  notify  the  tenants  of  his  ap- 
pointment and  demand  that  they  attorn  to  him.5  It  seems  that 
as  soon  as  he  has  obtained  possession  of  all  the  estate  that  con- 
sists of  personal  property  he  should  make  an  inventory  thereof.6 
All  moneys  that  he  receives  he  should  either  pay  into  court  or 
deposit  in  a  bank  to  the  credit  of  himself  as  receiver,  in  a  sepa- 
rate account  from  that  for  his  private  deposits.7  In  remitting 
money  from  one  place  to  another,  he  may  do  so  by  using  the 
ordinary  means,  provided  that  he  uses  due  care.8  He  will  be 
personally  liable  for  all  loss  to  the  estate  caused  by  his  making 
any  other  disposition  of  the  funds  collected  by  him.9  It  is  ad- 
visable for  a  receiver  to  take  a  receipt  for  all  sums  of  money 
exceeding  twenty  dollars  paid  out  by  him.     By  so  doing,  and 

29  Brewer,  J.,  In  re  Doolittle,  23  Fed.  R.  6  Lewin  on  Trusts  (6th  ed.,  London, 

644,  547.  1875),  184 ;  England  v.  Downs,  6  Beav. 

§  250.   *  Davis  v.  Gray,  16  Wall.  203,  269.     See  also  Williamson  v.  Wilson,  1 

217,  218;  Central  Trust  Co.  v.  Wabash,  Bland  (Mil.),  418,  436. 

St.  L.  &  P.  Ry.  Co.,  23  Fed.  R.  863.  '  Salway  v.  Salway,  4  Russ.  60 ;  8.  c. 

2  Davis  v.  The  Duke  of  Marlborough,  2  R.  &  M.  215;  Wren  v.  Kirton,  11  Ves. 
2  Swanst.  108,  118,  137,  138;  Georgia  v.  377  ;  Hinckley  v.  Railroad  Co.,  100  U.  S. 
Atlantic  &  Gulf  R.  R.  Co.,  3  Woods,  434.  153,  157. 

3  See,  for  example.  Commonwealth  v.  8  Knight  v.  Lord  Plimouth,  3  Atk.480; 
Franklin  Ins.  Co.,  115  Mass.  278  ;  People  s.  c.  1  Dickens,  120. 

v.  National  Trust  Co.,  82  N.  Y.  283.  9  Salway  t-.  Salway,  4  Russ.  60 ;   s.  c 

*  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1087.     2  R.  &  M  215;   Rowth  v.  Howell,  3  Ves. 
6  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1987.     665. 


§  250.]  DUTIES   OF   RECEIVERS.  373 

by  using  such  receipts  as  vouchers,  he  will  have  less  difficulty 
in  passing  his  accounts.10  A  receiver  should  so  keep  the  estate 
in  his  hands  that  it  can  be  easily  traced,  delivered  up,  or  ac- 
counted fur.11  He  should,  at  least  as  often  as  once  a  year, 
account  and  pay  into  court  all  the  money  which  he  has  received, 
together  with  the  profits  thereof,  less  all  necessary  or  author- 
ized expenditures,  and  such  compensation  as  the  court  allows 
him.12  If  he  receives  a  considerable  sum  of  money  during  the  in- 
terval between  the  regular  times  for  his  accounting,  it  seems  that 
he  should  apply  to  the  court  for  directions  concerning  its  invest- 
ment ; 13  and  in  general,  he  should  apply  for  instructions  when- 
ever any  unexpected  event  occurs  of  which  advantage  may  be 
taken  for  the  benefit  of  the  estate,  or  which  necessitates  active 
measures  to  preserve  the  estate  from  loss.14  Any  profit  which 
lie  may  make  from  the  estate  belongs  to  the  finally  successful 
party,  or  to  him  to  whom  the  surplus,  after  the  payment  of  prior 
demands,  is  finally  directed  to  be  paid.15  And  if  he  uses  the 
property  over  which  he  has  been  appointed  in  his  private  busi- 
ness he  must  pay  to  the  estate  for  its  use.16  It  is  usually  con- 
sidered improper  for  a  receiver  to  retain  as  his  counsel  one  who 
has  previously  acted  in  the  suit  for  one  of  the  parties.17  But  it 
is  proper  for  a  receiver  appointed  in  a  suit  brought  by  a  creditor 
for  the  satisfaction  of  his  own  debt  alone,  to  retain  the  attorney 
of  the  complainant.18  In  one  case,  the  court  refused  to  allow  the 
receiver  to  retain  a  relative  who  had  previously  practised  else- 
where, and  had  come  into  the  circuit  apparently  for  the  purpose 
of  acting  as  counsel  for  the  receiver.19  A  receiver  of  a  railroad 
is  a  common  carrier,20  guilty  of  impropriety,  for  which  he  may 
be  removed,   when  he  discriminates  between  different  persons 

lu  Rcmsen  v.  Remsen,  2  J.  Ch.  (N.  Y.)  v.  Hicks,  3  Atk.  274;  Earl  of  Lonsdale  v. 

495,  501.  Church,  3  Brown  Ch.  C.  41. 

ii  Williamson  y.  Wilson,  1  Bland  (Md.),  15  Gibbs  v.  David,  L.  R.  20  Eq.  373. 

18  ;  Hinckley  v.  Railroad  Co.,  100  U.  S.  But  see  Whitesides  v.  Lafferty,  3  Humph. 

153,    157  ;     Attorney-General    v.    North  (Tenn.)  150. 

American  Life  Ins.  Co.,  89  N.  Y.  94,  107,  i6  Battaile  v.  Fisher,  36  Miss.  321. 

108.  17  Ryckmanv.  Parkins,  5  Paige  (N.  Y.), 

12  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1992  ;  543 ;  Blair  v.  St.  Louis,  II.  &  K.  R.  R.  Co., 
Shaw   v.   Rhodes,  2   Russell,  539.      See  20  Fed.  R.  348. 

§  256.  18  Shainwald  v.  Lewis,  8  Fed.  R.  878. 

13  Shaw  ».  Rhodes,  2  Russ.  539 ;  Hicks         19  Blair  v.  St.  Louis,  H.  &  K.  R.  R.  Co., 
v.  Hicks,  3  Atk.  274  ;  Earl  of  Lonsdale  v.     20  Fed.  R.  348. 

Church,  3  Brown  Ch.  C.  41.  2°  Beers   v.  Wabash,  St.  L.  &  P.  Ry. 

14  Shaw  v.  Rhodes,  2  Russ.  539;  Hicks     Co.,  34  Fed.  R.  244. 


374  RECEIVERS.  [CHAP.  XVII. 

who  use  the  railway.21  A  receiver  cannot  resign  without  the 
permission  of  the  court  which  appointed  him.22  A  recent  statute 
provides  "  that  whenever  in  any  cause  pending  in  any  court  of 
the  United  States,  there  shall  be  a  receiver  or  manager  in  pos- 
session of  any  property,  such  receiver  or  manager  shall  manage 
and  operate  such  property  according  to  the  requirements  of  the 
valid  laws  of  the  State  in  which  such  property  shall  be  situated, 
in  the  same  manner  that  the  owner  or  possessor  thereof  would 
be  bound  to  do  if  in  possession  thereof.  Any  receiver  or  man- 
ager who  shall  wilfully  violate  the  provisions  of  this  section 
shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  on  conviction 
thereof  be  punished  by  a  fine  not  exceeding  three  thousand  dol- 
lars, or  by  imprisonment  not  exceeding  one  year,  or  by  both  said 
punishments,  in  the  discretion  of  the  court."  23 

§  251.  Liability  of  a  Receiver.  —  The  liabilities  of  a  receiver  are, 
in  many  respects,  analogous  to  those  of  a  trustee.  He  is  liable 
to  all  persons  interested  in  the  estate  in  his  hands  for  any  dam- 
age resulting  to  them  from  any  breach  of  duty  by  him,  whether 
intentionally 1  or  through  negligence.2  He  is,  however,  free 
from  liability  to  the  parties  to  the  suit  on  account  of  any  act 
performed  in  obedience  to  an  order  of  the  court  within  its  juris- 
diction, and  not  obtained  by  fraud,  until  the  same  has  been 
vacated  npon  appeal  or  otherwise.3  A  receiver's  liability  to 
strangers  is  much  more  limited  than  that  of  a  trustee.4  He  is 
not  liable  personally  upon  a  covenant  entered  into  in  his  official 
capacity  with  the  sanction  of  the  court.5  A  few  cases  seem, 
however,  to  imply  that  by  retaining  the  possession  for  the  use  of 
the  estate  of  property  held  under  a  lease,  he  would  become  per- 
sonally liable  for  the  rent,  where  he  had  made  no  agreement 
to  retain  possession  of  the  premises  under  the  authority  of  the 
court.6     A  receiver,  even  when  acting  as  a  common  carrier,  is 

21  Handy  v.  Cleveland  &  M.  R.  R.  Co.,  8  Holcombe  v.  Johnson,  27  Minn.  353. 

31  Fed.  R.  689.  4  See  Taylor  v.  Davis,  110  U.  S.  330, 

SB  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  2002.  335. 

See  In  the  Matter  of  Jones,  4  Sandford's  5  Livingston  v.  Pettigrew,  7  Lansing 

(Ch.  N.  Y.)  615.  (N.  Y.),  405;   Newman  v.  Davenport,   9 

23  25  St.  at  L.  ch.  866,  §  2,  p.  436  ;  24  Baxter  (Tenn.),  538  ;  Taylor  v.  Davis,  110 

St.  at  L.  ch.  373,  §  2,  p.  554.  U.  S.   330,  335 ;    Central  Trust   Co.    v. 

§  251.   »  Knight  v.  Lord  Plimouth,   3  Wabash,  St.  L.  &  P.  Ry.  Co.,  34  Fed.  R. 

Atk.  480,  481 ;  Kaiser  i>.  Kellar,  21  Iowa,  259. 

95,  97  ;    Koontz   v.   Northern   Bank,   16  6  Commonwealth  v.  Franklin  Ins.  Co., 

Wall.  196,  202,  203.  115  Mass.  278 ;  People  v.  National  Trust 

2  Skerretts'  Minors,  2  Hog.  192.  Co.,  82  N.  Y.  283 ;   People  v.  Universal 


§  251.]  LIABILITY   OF   A   RECEIVER.  375 

not  liable  personally  for  injuries  caused  by  the  negligence  of  his 
employees,  when  he  exercised  reasonable  care  in  their  selection.7 
The  only  remedy  of  the  person  thus  aggrieved  is  by  an  action 
against  the  receiver  in  his  official  capacity,  seeking  satisfaction 
out  of  the  estate.8  When  the  receiver  has  been  discharged  and 
the  estate  sold,  or  returned  to  its  owner,  he  has  no  remedy  ex- 
cept against  the  employee,  unless  one  has  been  preserved  for  him 
by  the  court ; 9  for  the  owner  of  the  property  is  not  liable  for  the 
negligence  of  the  receiver's  employees.10  For  this  reason  it  is 
customary  to  insert  in  the  order  for  the  sale  in  bulk  of  prop- 
erty in  the  possession  of  a  receiver,  that  the  purchaser  shall  take 
it  subject  to  all  claims  for  injuries  caused  while  it  was  managed 
by  the  receiver.11  Such  a  provision,  although  not  mentioned  in 
the  order  for  the  sale,  may  be  inserted  as  a  condition  in  the 
order  confirming  the  sale,  and  the  purchaser,  after  taking  posses- 
sion under  the  latter  order,  is  estopped  from  disputing  the  valid- 
ity of  the  condition.12  Such  claims  are  enforced  in  the  suit  in 
which  the  receiver  was  appointed.13  By  the  former  practice,  fol- 
lowing the  old  chancery  rule,  a  receiver  could  not  be  sued  with- 
out the  permission  of  the  court  that  appointed  him.14  Such  an 
order  was  revocable,  and  might  have  been  conditional.15  A  re- 
cent statute  changes  this  as  follows:  "  Every  receiver  or  manager 
of  any  property  appointed  by  any  court  of  the  United  States 
may  be  sued  in  respect  of  any  act  or  transaction  of  his  in  carry- 
ing on  the  business  connected  with  such  property,  without  the 
previous  leave  of  the  court  in  which  such  receiver  or  manager  was 
appointed ;  but  such  suit  shall  be  subject  to  the  general  equity 

Life  Ins.  Co.,  30  Hun,  (37  N.  Y.  S.  C.  R),  Fed.  R.  537 ;  Union  Trust  Co.  v.  C.  &  L.  H. 

142.      But    see    Central    Trust    Co.    v.  Ry.  Co.,  7  Fed.  R.  513,  516. 

Wabash,  St.  L.  &  P.  Ry.  Co.,  34  Fed.  R.  9  Davis  v.  Duncan,  19  Fed.  R.   477 ; 

259,  269;    Brown  v.  Toledo,  P.  &  W.  R.  White  v.  Keokuk  &  D.  M.  Ry.  Co.,  62 

Co.,  35  Fed.  R.  444 ;  Easton  ».  Houston  Iowa,  97. 

&  T.  C.  Ry.  Co.,  38  Fed.  R.  784.  10  Davis  v.  Duncan,  19  Fed.  R.  477. 

7  Kennedy  v.  I.  C.  &  L.  R.  Co.,  3  Fed.  "  Farmers'  L.  &Tr  Co.  v.  Central  R.  R. 
R.  97;  Union  Trust  Co.  v.  Chicago  &  L.  of  Iowa,  2  McCrary,  181 ;  8.  c.  7  Fed.  R. 
H.  Ry.  Co.,  7  Fed.  R.  513,  516;  Davis  v.  537;  s.  c.  subsequently  considered,  17  Fed. 
Duncan,  19  Fed.  R.  477  ;  Farmers'  L.  &  R.  758. 

Tr.   Co.  v.   Central   Railroad   of  Iowa,  v-  Farmers'  L.  &  Tr.  Co.  v.  Central  R.  R. 

2   McCrary,   181 ;    s.   c.  7  Fed.  R.  537.  of  Iowa,  17  Fed.  R.  758. 

See,  however,  Kain  v.  Smith,  80  N.  Y.  13  Farmers'  L.  &  Tr.  Co.  v.  Central  R.  R. 

458.  of  Iowa,  17  Fed.  R.  758. 

8  Kennedy  v.  I.  C.  &  L.  R.  Co.,  3  Fed.  M  Barton  v.  Barbour,  101  U.  S.  126. 

R.  97  ;  Farmers'  L.  &  Tr.  Co.  v.  Central  16  Central  Trust  Co.  v.  Wabash,  St.  L. 
R.  R.  of  Iowa,  2  McCrary,  181 ;    s.  c.  7    &  P.  Ry.  Co.,  26  Fed.  R.  74. 


376  RECEIVERS.  [CHAP.  XVII. 

jurisdiction  of  the  court  in  which  such  receiver  or  manager  was 
appointed,  so  far  as  the  same  shall  be  necessary  to  the  ends  of 
justice."16  A  judgment  in  a,  suit  thus  prosecuted  can  only  be 
collected  out  of  the  property  in  the  hands  of  the  receiver  in  his 
official  capacity.17  A  receiver  is  personally  liable  to  strangers 
for  trespass,18  fraud,19  or  other  wilful  act,  although  performed 
under  color  of  his  office.  So,  if  he  by  mistake,  though  honestly, 
takes  possession  of  the  property  of  another,  he  is  personally 
liable.20  The  fact  that  he  does  so  under  authority  of  an  order  of 
the  court  will  not  justify  him  as  against  a  person  who  was  not  a 
party  to  the  suit  or  proceeding  in  which  the  order  was  granted.21 
In  all  of  such  cases  it  seems  that  he  can,  independently  of  the 
statute,  be  sued  without  leave  of  the  court  which  appointed  him.22 
But  when  a  receiver  of  a  State  court  was  sued  in  a  Federal  court 
for  an  infringement  of  a  patent,  in  obedience  to  an  order  of  the 
State  court  the  Federal  court  stayed  its  proceedings,  to  allow  time 
for  an  application  to  the  State  court  to  modify  its  order.23  A  per- 
son who,  without  having  been  lawfully  appointed,  assumes  to  act 
as  a  receiver,  has  all  the  liabilities  of  one  duly  appointed.24  The 
discharge  of  a  receiver  until  revoked  relieves  him  from  all  lia- 
bility  to  those  who  had  an  opportunity  to  be  heard  upon  the 
motion  for  his  discharge.25 

§  252.  Manner  of  applying  for  the  Appointment  of  a  Receiver.  — 
It  has  been  said  that  a  court  has  no  jurisdiction  to  appoint  a 
receiver,  unless  a  cause  is  pending ; 1  and  that,  therefore,  one  will 
never  be  appointed  upon  petition  2  when  no  suit  has  been  begun, 
except  in  the  case  of  lunatics.3  The  grounds  of  the  exception 
and  the  reasons  why  it  does  not  extend  to  infants4  are  not  very 

i«  25  St.  at  L.,  ch.  866,  §  3,  p.  436;  Craig,  22  Fed.  R.  201.  But  see  Aston  v. 
24  St.  at  L.  ch.  373,  §  3,  p.  554.  Heron,  2  Myl.  &  K.  390 ;  Chalie  v.  Picker- 

17  Farmers'  L.  &  Tr.  Co  v.  Central  R.  R.     ing,  1  Keen,  749. 

of  Iowa,  2  McCrary,  181 ;  3.  c.  7  Fed.  R.  23  Curran  v.  Craig,  22  Fed.  R.  101. 

537 ;  Barton  v.  Barbour,  104  TJ.  S.  126.  24  Wood  v.  Wood,  4  Russ.  558. 

18  In  re  Young,  7  Fed.  R.  855  ;  Olney  v.  »  Lehman   v.  McQuown,  31   Fed.  R. 
Tanner,  10  Fed.  R.  101;  Barton  v.  Bar-  138;  Davis  v.  Duncan,  19  Fed.  R.  477. 
bour,  104  U.  S.  126,  134.  §  252.   »  Anon.,  1  Atk.  578.   See  §  260. 

19  Bank  of  Montreal  v.  Thayer,  7  Fed.  2  Anon,  1  Atk.  578 ;  Ex  parte  Whit, 
R.  622.  field,  2  Atk.  315;  Merchants'  &  M.  Na- 

20  Barton  i\  Barbour,  104  U.  S.  126, 134;  tional  Bank  v.  Kent  Circuit  Judge,  43 
Curran  v.  Craig,  22  Fed.  R.  101.  Mich.  292. 

21  Curran  v.  Craig.  22  Fed.  R.  101.  8  Ex  parte  Radcliffe,  1  J.   &  W.  639; 

22  Barton  v.  Barbour,  104  U.  S.  126, 134 ;  Anon.,  1  Atk.  578  ;  Ex  parte  Warren, 
In  re  Young,  7  Fed.  R.  855 ;  Bank  of  Mon-  10  Ves.  622. 

treal  v.  Thayer,  7  Fed.  R.  622;  Curran  v.  *  Ex  parte  Whitfield,  2  Atk.  315. 


§  252.]      MANNER  OF  APPLYING  FOR  APPOINTMENT  OF  RECEIVER.      377 

clear.  After  a  suit  has  been  begun,  however,  a  receiver  may  be 
appointed  at  any  stage  of  it  when  a  necessity  is  shown,  —  before 
appearance,5  between  appearance  and  answer,6between  answer  and 
decree,"  at  the  decree,8  or  afterwards,  if  the  cause  is  still  open.9 
But  a  case  of  pressing  necessity  must  exist  to  justify  the  appoint- 
ment of  a  receiver  before  answer.10  An  objection  to  the  bill  on 
account  of  multifariousness  or  a  misjoinder  of  parties  will  not 
prevent  the  appointment  of  a  receiver  ;  nor  will  the  pendency  of 
a  motion  for  leave  to  amend  the  bill,11  unless  indeed  the  proposed 
amendment  would  change  materially  the  allegations  showing 
the  necessity  for  a  receiver.  The  bill  should  lay  the  foundation 
for  the  appointment  by  stating  the  facts  which  show  its  necessity 
and  propriety,12  and  should  contain  a  prayer  for  a  receiver.13  If, 
however,  a  state  of  facts  subsequently  arise  making  the  appoint- 
ment necessary,  it  may  probably  be  made  without  an  amendment 
of  the  original  or  the  filing  of  a  supplemental  bill.14  The  appli- 
cation for  a  receiver  should  be  supported  by  evidence  showing 
that  the  appointment  is  necessary.16  If  the  application  is  made 
before  decree,  the  affidavits  should  be  founded  upon  the  allega- 
tions in  the  bill.16  If  statements  not  founded  on  allegations  in 
the  bill  and  alleging  facts  which  existed  and  were  known  before 
the  bill  was  filed,  are  introduced  into  the  affidavits,  it  seems  that 
the  court  will  not  attend  to  them ; 17  and  even  if,  where  the  case 
made  by  the  bill  fails,  sufficient  ground  for  a  receiver  is  confessed 
in  the  answer,  it  seems  that  a  receiver  would  be  denied  the  plain- 
tiff, at  least  until  he  had  amended  his  bill.18  After  an  application 
for  a  receiver  has  been  once  denied,  a  second  application  supported 


5  Tanfield  v.  Irvine,  2  Ttuss.  149.  (N.  Y.),  438.     But  see  Hottenstein  v.  Con- 

6  Vann  v.  Barnett,  2  Brown  Ch.  C.  158 ;  rad,  9  Kan.  435. 

Metcalfe  v.  Pulvertoft,  1  V.  &  B.  180.  13  Rule  21.    But  see  Osborne  v.  Harvey, 

I  Kershaw  v.  Mathews,  1  Russ.  361.  1  Y.  &  C.  N.  R.  116. 

8  Osborne  v.  Harvey,  1  Y.  &  C.  N.  R.  14  Malcolm  v.  Montgomery,  2  Molloy, 
116.  500;  Hottenstein  v.  Conrad,  9  Kan  435. 

9  Cooke  v.  Gwyn,  3  Atk.  689  ;   Attor-        15  Middleton  v.  DodsweU,  13  Ves.  266 ; 
ney-General  v.  Mayor  of  Gal  way,  1  Mol-  Kerr  on  Receivers  (2d  Am.  ed.),  154. 
loy,  95 ;  Bowman  v.  Bell,  14  Simons,  392.         1G  Dawson  v.  Yates,  1  Beav.  301,  306  ; 

10  Latham  v.  Chafee,  7  Fed.  R.  525.  Cremen  v.  Hawkes,  2  Jones  &  LaT. 
See  Uuion  Mut.  Life  Ins.  Co.  v.  Union  674  ;  Kerr  on  Receivers  (2d  Am. ed.),  154. 
Mills  Plaster  Co.,  37  Fed.  R.  287.  "  Dawson  v.  Yates,  1  Beav.  301,  306; 

II  Barnard   v.    Darling,    1    Barb.   Ch.  Kerr  on  Receivers  (2d  Am.  ed  ),  151. 
(N.  Y.)  TO.  18  Cremen  v.  Hawkes,  2  Jones  &  LaT. 

12  Tomlinson   v.  Ward,  2  Conn.  396;  674;   Kerr  on  Receivers  (2d    Am.   ed.), 

Verplanck  v.  Mercantile  Ins.  Co.,  2  Paige  154. 


378  RECEIVERS.  [CHAP.  XVII. 

by  the  same  papers  will  rarely  be  granted.19  The  former  rule  was 
that,  after  answer,  a  plaintiff  when  moving  for  a  receiver  could 
only  rely  upon  the  admissions  in  the  answer ;  ^  but  now  a  sworn 
answer  is  given  upon  such  a  motion  little  more  effect  than  an 
ordinary  affidavit,  and  may  be  contradicted  by  affidavits  in  sup- 
port of  the  bill.'21  The  appointment  is  usually  only  made  upon 
notice,  and  is  very  rarely  granted  ex  parte."*2  Less  than  one 
day's  notice  has  been  held  to  be  insufficient.23  A  receiver  may, 
however,  be  appointed  ex  parte,  if  that  is  the  only  way  to  pre- 
serve the  property  from  destruction  or  serious  injury,  or  removal 
beyond  the  jurisdiction  of  the  court.24  It  has  been  said  that  a 
receiver  of  the  assets  of  a  railroad  company  will  rarely  be  ap- 
pointed in  a  suit  to  which  no  stockholders  or  bondholders  are 
actually  parties.25  Where  the  officer  of  a  corporation  who  had 
been  served  with  notice  of  a  motion  for  the  appointment  of  a 
receiver  fraudulently  concealed  that  fact  from  his  associates,  and 
did  not  oppose  the  motion,  although  no  collusion  with  the  plaintiff 
was  shown,  a  motion  to  vacate  the  appointment  was  entertained.20 
A  delay  of  one  month  after  knowledge  of  the  appointment  of  a 
receiver,  who  had  expended  iu  the  improvement  of  the  property 
money  furnished  him  by  others,  was  held  such  acquiescence  as  to 
estop  a  party  from  moving  to  vacate  the  order  of  appointment 
for  irregularity  because  granted  without  notice  to  him.27  Except 
in  an  extraordinary  case,  a  receiver  will  not  be  appointed  over 
property  in  the  possession  of  a  stranger  to  the  suit.28 

§  253.  "Who  may  apply  for  the  Appointment  of  a  Receiver.  — 
A  receiver  is  usually  appointed  upon  the  application  of  the 
plaintiff.  Before  a  decree  it  seems  that  one  defendant  cannot 
move  for  a  receiver,1  unless  he  has  filed  a  cross-bill  praying  for 

19  Fenton  v.  Lumberman's  Bank,  Clarke  481 ;  Johns  v.  Johns,  23  Ga.  31 ;  Triebert  v. 

Ch.  (N.  Y.)  360.  Burgess,  11  Aid.  452;   Gibbins  v.  Main- 

23  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1976.  waring,  9    Simons,  77;    Miltenberger  v. 

See  Goodman  v.  Whitcomb,  1  J.  &  W.  Logansport  Ry.  Co.,  106  U.  S.  286. 

689;  Kershaw  v.  Mathews,  1  Russ.  361.  2i  Overton  v.  Memphis  &  L.  R.  R.  Co., 

21  Allen  v.  The  Dallas  &  Wichita  R.  R.  10  Fed.  R.  866.    But  see  Central  Trust  Co. 
Co.,  3  Woods,  316,  332.  v.  Texas  &  St.  L.  Ry.  Co.,  24  Fed.  R.  153. 

22  Blondheim  v.  Moore,  11  Md.  365 ;  »  Allen  v.  The  Dallas  &  Wichita  R.  R. 
People  v.  Norton,  1   Paige  (N.  Y.)  17  ;  Co.,  3  Woods,  316. 

Sandford  v.  Sinclair,  8  Paige  (N.  Y. ),  373  ;  «  Allen  v.  The  Dallas  &  Wichita  R.  R. 

Miltenberger  v.  Logansport  Ry.  Co.,  106  Co.,  3  Woods,  316. 

U.  S.  286.  ^  Searles  v.  The  Jacksonville,  Pensa- 

23  St.  Louis,  K.  C.  &  C.  Ry.  Co.  v.  cola,  &  Mobile  R.  R.  Co.,  2  Wroods,  621. 
Dewees,  23  Fed.  R.  691.  See  also  Davis  v.  Gray,  16  Wall.  203,  218. 

24  Gibson  v.  Martin,  8  Paige   (N.  Y.),  §253.   1  Robinson'y.  Hadley,  11  Beav. 


§  255.]       WHO  SHOULD  BE  APPOINTED  KECEIYER.  379 

one.2  After  a  decree,  however,  he  may,  in  a  proper  case,  obtain  a 
receiver  of  the  property  of  a  co-defendant  upon  petition,3  but  not 
usually  over  the  property  of  the  plaintiff  without  a  cross-bill.4 

§  254.  Manner  of  the  Appointment  of  a  Receiver.  —  By  the  Eng- 
lish practice,  which  was  followed  in  New  York  before  the  passage 
of  statutes  altering  it,  when  an  application  for  the  appointment  of 
a  receiver  was  granted,  the  selection  of  the  receiver  was  referred 
to  a  master  in  chancery,  whose  action  was  subject  to  the  con- 
firmation of  the  court.1  The  same  master  usually  exercised 
supervision  over  contracts  made  by  the  receiver  and  the  adjust- 
ment of  his  compensation.2  In  the  Federal  courts,  however,  it 
is  the  customary  practice  for  the  judge  to  appoint  and  often  to 
supervise  a  receiver  himself,  without  the  aid  of  a  master,  except 
when  the  accounts  are  passed.3 

§  255.  Who  should  be  appointed  Receiver.  —  As  a  general  rule 
no  one  should  be  appointed  receiver  of  property  who  has  any 
interest  therein,1  or  is  in  any  way  connected  with  the  litigation 
in  the  course  of  which  the  appointment  is  made,2  or  is  nearly 
related  to,3  or  is  in  the  employ  of  any  of  the  parties  thereto,4  or 
who,  if  he  should  receive  the  appointment,  would  occupy  two 
inconsistent  positions;5  nor  a  person  who  is  not  familiar  with 
the  management  of  similar  property,6  and  able  to  give  sufficient 
attention  to  the  management  of  his  trust.7     Thus  a  stockholder,8 

614  ;  Leddel's  Ex'r  v.  Starr,  19  N.  J.  Eq.  Frank   v.  Denver  &  R.  G.   Ry.  Co.,  23 

(4  C.  E.  Green)  159.    But  see  Sargant  v.  Fed.  R.  757.     But  see  Taylor  v.  Phila.  & 

Read,  L.  R.  1  Ch.  D.  600 ;   Henshaw  v.  Reading  R.  R.  Co.,  7  Fed.  R.  377  ;  s.  c. 

Wells,  9  Humph.  (Tenn.)  568.  9  Fed.  R.  1 ;  Cowdrey  v.  Railroad  Co.,  1 

2  Grote  v.  Bury,  1  W.  R.  92  ;  Robinson  Woods,  331,  341. 

v.  Hadley,  11  Beav.  614  ;  Kerr  on  Receiv-  §  255.   x  Wiswell  v.  Starr,  48  Me.  401. 

ers  (2d  Am.  ed.),  153,  154.  2  Baker  v.   Backus,  32  111.  79;   Gar- 

»  Barlow  v.  Gains,  8  Beav.  329;  Hiles  land  v.  Garland,  2  Ves.  Jr.  137. 

v.  Moore,  15  Beav.  175;  Kerr  on  Receiv-  3  Williamson  v.  Wilson,  1  Bland  (Md.), 

ers  ('2d  Am.  ed.),  154.  418. 

*  Grote  v.  Bury,  1  W.  R.  92 ;  Robin-  4  Baker  v.  Backus,  32  111.  79  ;   Attor- 

son  v.  Hadley,  11    Beav.  614;    Kerr  on  ney-General  v.  Bank  of  Columbia,  1  Pa isje 

Receivers  (2d  Am.  ed.),  153,  154.  (N.  Y.),  511 ;  Buck  v.  Piedmont  &  Arling- 

§  254.   l  Crcuze  v.  Bishop  of  London,  ton  Life  Ins.  Co.,  4  Fed.  R.  849. 

Dickens,  687;  Thomas  v.  Dawkin,  1  Ves.  6  Stone  v.  Wishart,  2  Madd.  64;   Ex 

Jr.  452  ;  In  re  Eagle  Iron  Works,  8  Paige  parte  Fletcher,  6  Ves.  427. 

(N.  Y.)  385;    High  on  Receivers,  §90;  6  Lupton    v.    Stephenson,    11    Ir.  Eq. 

Danicll's  Ch.  Pr.  (2d  Am.  ed.)  PJ76.  484. 

2  Thornhiil  v.  Thornhill,  14  Simons,  7  Wynne  v.  Lord  Newborough,  15  Ves. 
600.  283  ;  Gibbs  v.  David,  L.  R.  20  Eq.  373. 

3  MUtenberger  v.  Logansport  Ry.  Co.,  8  Wiswell  v.  Starr,  48  Me.  401 ;  Atkins 
106  U.  S.  286  ;  Buck  v.  Piedmont  &  Ar-  v.  Wabash,  St.  L.  &  P.  Ry.  Co.,  29  Fed.  R 
lington   Life  Ins.  Co.,  4  Fed.  R.   849;  101. 


380  RECEIVERS.  [CHAP.  XVII. 

officer,  or  director9  of  a  corporation  will  very  rarely  be  appointed 
a  receiver  of  its  assets ;  nor  a  party,10  or  solicitor,11  or  the  son 
or  brother  of  a  party12  to  a  cause  over  property  which  is  the  sub- 
ject of  the  litigation.  Nor  should  the  next  friend  of  an  infant, 
whose  duty  it  is  to  protect  his  interest,  be  appointed  receiver 
over  his  estate ; 13  nor  an  active  trustee  over  the  trust  estate  ; 14 
although  a  mere  dry  trustee  may  be  thus  appointed.15  Nor 
should  a  master  in  chancery,  whose  duty  it  is  to  pass  receivers' 
accounts  be  appointed  a  receiver ; 16  nor  should  a  solicitor  who 
does  not  understand  the  management  of  machinery,  be  appointed 
receiver  over  a  manufacturing  establishment.17  Nor  should  a 
person  be  appointed  receiver  who  lives  at  a  great  distance  from 
the  estate  over  which  a  receiver  is  desired,  and  is  actively 
engaged  in  another  employment.18  It  has  also  been  said  in 
England,  "that  the  Receiver-general  of  Taxes  for  a  county  can- 
not be  appointed  a  Receiver;  for  having  given,  as  such,  security 
to  the  crown,  if  he  were  to  become  indebted  to  the  crown  and  to 
the  estate,  the  crown  might,  by  its  prerogative  process,  sweep 
away  all  his  property."19  And  Lord  Eldon  held  that  a  peer  could 
not  be  a  receiver,  because,  "  in  many  instances,  a  Receiver  may  be 
committed."  20  The  court  may,  however,  under  very  special  cir- 
cumstances appoint  as  receiver  a  trustee,21  or  a  person  interested 
in  the  subject  of  the  suit22  or  even  a  party  to  the  suit,23  or  his  near 
relation.24  This,  however,  will  not  be  done  unless  by  consent, 
or  possibly  when  it  clearly  appears  to  be  for  the  interest  of  all 

9  Attorney-General  v.  Bank  of  Colum-  "  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1073. 

bia,  1  Paige  (N.  Y.),  511  ;   Buck  v.  Pied-  See   Attorney-General  v.  Day,  2  Madd. 

aaont  &  Arlington  Life  Ins.  Co.,  4  Fed.  R.  246,  254. 

849 ;  Atkins  v.  Wabash,  St.  L.  &  P.  Ry.  20  Attorney-General  v.  Gee,  2  V.  &  B. 

Co.,  29  Fed.  R.  161 ;  Baker  v.  Backus,  32  208. 

111.  79.  21  Sykes  v.  Hastings,  11  Ves.  363  ;  Sut- 

10  Wilson  v.  Greenwood,  1  Swanst.  471.  ton  v.  Jones,    15  Ves.  584  ;    Gardner   v. 

11  Baker  v.  Backus,  32  111.  79  ;  Garland  Blane,  1  Hare,  381 ;  Povvys  v.  Blagrave, 
v.  Garland,  2  Ves.  Jr.  137.  18  Jur.  463  ;  Ames  v.  Birkenhead  Docks, 

i2  Williamsons  Wilson,  1  Bland  (Md.),  20  Beav.  332  ;   Potts  v.  Warwick   &  Bir- 

418;  Taylor  v.  Oldham,  Jac.   527.     But  mingham    Canal   Nav.    Co.,   Kay,    143; 

see  Shainwald  v.  Lewis,  8  Fed.  R.  878.  Kerr  on  Receivers   (2d  Am.  ed.),   130- 

13  Stone  v.  Wishart,  2  Madd.  64.  139. 

14  Sutton  v.  Jones,  15  Ves.  584  ;  v.        22  Hoffman    v.   Duncan,   18    Jur.    69  ; 

Jolland,  8  Ves.  72.  Powys  v.  Blagrave,  18  Jur.  462 ;  Kerr  on 

15  Sutton  v.  Jones,  15  Ves.  584.  Receivers  (2d  Am.  ed.),  136. 

16  Ex  parte  Fletcher,  6  Ves.  427.  28  Wilson  v.  Greenwood,  1  Swanst.  471 ; 

17  Lupton  v.  Stephenson,  11  Ir.  Eq.  484.  Blakeney  v.  Dufaur,  15  Beav.  40. 

18  Wynne  v.  Lord  Nevvborougli,  15  Ves.         2i  Shainwald  v.  Lewis,  8  Fed.  R.  878. 
283. 


§  256.]  THE  receiver's  security.  381 

concerned ; 25  and  in  such  a  case  the  receiver  is  usually  obliged 
to  act  without  compensation  if  he  accepts  the  trust.20  When  a 
party  to  the  cause  is  appointed  receiver  in  it,  he  does  not  thereby 
lose  his  privilege  of  acting  as  party.27  It  has  been  held  in  Ten- 
nessee, that  no  one,  not  even  a  clerk  of  the  court,  can  be  made 
a  receiver  against  his  will.28  It  was  held  improper  to  appoint 
as  assignee  in  bankruptcy  of  a  corporation  one  who  had  been  ap- 
pointed by  a  State  court  receiver  of  its  assets;29  but  it  was 
subsequently  held  eminently  proper  to  appoint  as  receiver  of  the 
assets  of  an  insolvent  corporation  one,  who  by  the  laws  of 
the  State  that  chartered  it,  was  the  official  custodian  of  its  assets 
in  case  of  its  insolvency,  even  though  that  State  was  in  another 
circuit  from  the  one  in  which  the  suit  for  a  receiver  was  brought, 
and  the  officer  did  not  reside  within  the  jurisdiction  of  the 
court.30  In  this  case,  it  was  made  a  condition  of  the  appoint- 
ment that  the  receiver  should  pay  into  the  registry  of  the  court 
the  proceeds  of  all  assets  collected  within  its  jurisdiction;31  but 
he  was  allowed  to  give  sureties  who  were  residents  of  the  State 
where  he  dwelt.32  An  order  may  provide  for  the  appointment 
of  a  receiver  in  the  alternative  to  other  relief.33  Recent  statutes 
provide  that  no  clerk  or  deputy  clerk  of  a  Federal  court  shall 
be  appointed  receiver  except  for  special  reasons  which  must  be 
assigned  in  the  order  of  appointment ;  u  and  that  "  no  person 
related  to  any  justice  or  judge  of  an}'-  court  of  the  United  States 
by  affinity  or  consanguinit}r,  within  the  degree  of  first  cousin, 
shall  hereafter  be  appointed  by  such  court  or  judge  to  or  em- 
ployed by  such  court  or  judge  in  any  office  or  duty  in  any  court 
of  which  such  justice  or  judge  may  be  a  member."  35 

§  256.  The  Receiver's  Security. — As  a  general  rule,  the  Older 
for  the  appointment  of  a  receiver  provides  that  he  shall  give 
good  and  sufficient  security  for  the  faithful  performance  of  his 

25  Atkins  v.  Wabash,  St.  L.  &  P.  Ry.         29  In  re  Stuyvesant  Bank,  5  Benedict, 
Co.,  29  Fed.  R.  161 ;  Kerr  on  Receivers     566  ;  s.  c.  6  N.  B.  R.  272. 

(2d  Am.  ed.),  136-139.  30  Taylor  v.  Life  Association  of  Amer- 

26  Wilson    i'.    Greenwood,    1    Swanst.     ica,  3  Fed.  R.  465. 

471,  483;  Blakeney  v.  Dufaur,  15  Beav.  31  Taylor  v.  Life  Association  of  Amer- 

40  ;    Hoffman  v.   Duncan,   18  Jur.    69 ;  ica,  3  Fed.  R.  465. 

l'owys  v.  Blagrave,  18  Jur.  463.     But  see  32  Taylor  v.  Life  Association  of  Amer- 

Newport  v.  Bury,  23  Beav.  30.  ica,  3  Fed.  R.  465. 

27  Scott  v.  Platel,  2  Phil.  229  ;  Cowdrey  33  Curling  t\  Townshend,  19  Ves.  628. 
v.  Railroad  Co.,  1  Woods,  331,  350.  34  20  St.  at  L.  ch.  183,  p.  415. 

28  Waters  v.  Carroll,  9  Yerg.  (Tenn.)  35  25  St.  at  L.  ch.  373,  §  7,  p.  554. 
102. 


382  RECEIVERS.  [CHAP.  XVII. 

duties.1  This,  by  the  English  practice,  was  usually  a  recognizance 
entered  into  by  the  receiver  and  two  or  more  sureties,  whereby 
they,  the  cognizors,  acknowledged  "  themselves  to  be  indebted 
to  the  cognizees  (usually  the  Master  of  the  Rolls  and  the  senior 
Master  of  the  Court)  in  certain  sums  of  money  to  be  paid  on 
certain  days  therein  mentioned ;  in  default  of  which  they  will 
and  agree  that  the  said  sums  shall  be  levied  and  recovered 
of  them,  their  heirs,  executors,  and  administrators,  and  of  all 
and  singular  their  lands  and  hereditaments,  goods  and  chat- 
tels." 1  The  recognizance,  however,  was  subject  to  a  condi- 
tion making  it  void  if  the  receiver  should  duly  account  for  the 
rents  and  profits  of  the  estate  over  which  he  was  appointed.2 
In  the  Federal  courts,  no  fixed  rule  prevails,  the  security  re- 
quired from  a  receiver  being  whatever  the  judge  who  orders  his 
appointment  thinks  proper.3  When  a  receiver  is  appointed  by 
consent,  the  court  ma}'  appoint  him  without  requiring  security, 
or  upon  his  own  recognizance  only.4  The  sureties  must  usually 
dwell  within  the  jurisdiction  of  the  court ;  but  under  peculiar 
circumstances  sureties  residing  elsewhere  have  been  accepted.5 
The  sureties  of  a  receiver  cannot  be  discharged  at  their  own 
request,6  except  under  special  circumstances,  "  as  where  under- 
hand practice  is  proved,  and  the  person  secured  shown  to  be  con- 
nected with  such  practice."7  ''For  if  people  voluntarily  make 
themselves  bail  or  sureties  for  another,  they  know  the  terms,  and 
will  be  held  very  hard  to  their  recognizance,  and  not  discharged 
at  their  request  to  have  new  sureties  appointed,  for  then  there 
would  be  no  end  of  it." 8  If  a  surety  should  procure  his  dis- 
charge during  the  continuance  of  the  receivership,  the  receiver 
must  enter  into  a  fresh  recognizance.9  In  law,  a  surety  is  liable 
to  the  full  amount  of  the  penalty  of  the  recognizance,  bond,  or 
undertaking  by  which  he  is  bound.10  In  equity,  however,  he  is  only 
liable  to  the  full  amount,  including  interest  as  well  as  principal, 

§  256.   I  Danicll's  Ch.  Pr.  (2d  Am.  ed.)  s  Taylor  v.  Life  Association  of  Amer- 

1977  ;   Mead  v.  Lord  Orrery,  3  Atk.  235  ;  ica,  3  Fed.  R.  465. 

Tomlinson  v.  Ward,  2  Conn.  396.  6  Griffith  v.  Griffith,  2  Ves.  Sen.  400 ; 

2  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1999.  Gordon  v.  Calvert,  2  Simons,  253. 

3  Taylor  v.  Life  Association  of  Amer-  7  Hamilton  v.  Brewster,  2  Molloy,  407. 
ica,  3  Fed.  R.  465.  8  Lord  Hardwicke  in  Griffith  v.  Griffith, 

4  Hibhert  v.   Hibbert,   3  Meriv.  681  ;  2  Ves.  Sen.  400. 

Countess   of    Carlisle   v.   Lord   Berkley,  9  Vaughan  v.  Vaughan,  1  Dickens,  90; 

Anil).  599  ;  Pidout  v.  Earl  of  Plymouth,     Blois  v.  Betts,  1  Dickens,  336. 

1  Dickens,  68.  1U  Dawson  v.  Paynes,  2  Russ.  466,  468- 


§  257.]  KECEIVERS'    ACCOUNTS.  383 

which  the  receiver  is  liable  in  equity  to  pay,11  unless  that  exceeds 
the  amount  of  the  penalty,  which  fixes  the  extreme  limit  of  his 
liability.12  It  has  been  held  in  England  that  a  surety  who  has 
undertaken  to  be  responsible  for  whatever  a  receiver  "  should  re- 
ceive or  become  liable  to  pay"  as  such  receiver  is  liable  for  funds 
received  by  the  receiver  before  the  security  was  given.13  Where 
the  parties  interested  have  been  guilty  of  gross  delay  in  compel- 
ling the  receiver  to  pass  his  accounts,  the  court  may  excuse  the 
surety  from  the  payment  of  the  whole  or  a  part  of  the  interest.14 
According  to  Daniell,  "  When  an  action  is  brought  against  a 
receiver's  surety  upon  the  recognizance,  the  proper  course  for 
him  to  pursue  appears  to  be,  to  apply  to  the  court  by  motion, 
to  stay  the  proceedings  on  the  recognizance,  offering  at  the 
same  time  to  pay  the  amount  due  from  the  Receiver,  so  as  the 
same  does  not  exceed  the  amount  of  the  recognizance,  into 
Court:  and  upon  such  motion,  the  order  will  be  made  upon  the 
surety's  paying  the  cost  of  the  application,  and  of  the  proceed- 
ings consequent  upon  it.  When  the  Receiver's  account  has  not 
been  taken,  the  motion  should  also  pray  a  reference  to  the  Mas- 
ter to  see  what  is  due  from  the  Receiver ;  and  it  seems  that  upon 
such  application  the  Court  will  indulge  the  surety  by  allowing 
him  to  pay  the  balance  by  instalments."  15  When  a  surety  has 
been  obliged  to  pay  anything  on  account  of  the  receiver,  he  will 
be  entitled  to  a  lien  for  his  reimbursement  upon  anything  which 
may  subsequently  be  due  to  the  receiver  from  the  suit.16 

§  257.  Receivers'  Accounts.  —  A  receiver  should  account  annu- 
ally to  the  court  unless  accounts  at  shorter  intervals  are  required 
of  him.1  His  accounts  are  filed  and  passed  in  the  office  of  the 
master  to  whom  matters  pertaining  to  the  receivership  are 
referred.2  A  receiver's  account  should  describe  the  situation 
of  the  estate  at  the  time  when  he  received  it,  and  any  changes 
that  have  since  taken  place.  He  should  then  state  his  receipts 
and  disbursements,  which  should  be  set  forth  in  schedules  as 
specifically  as  possible.3     He  should  also  state  such  indebtedness 

11  Dawson  v.  Raynes,  2  Russ.  466.  §257.   1  Potts    v.    Lei^hton,   15  Ves. 

12  Walker  v.  Wild,  1  Madd.  528.  273;  General  Order,  15  Ves.  278;  Lowe 

13  Smart  v.  Flood,  49  L.  T.  467.  v.  Lowe,  1  Tenn.  Ch.  615. 

14  Dawson  v.  Raynes,  2  Russ.  466.  2  Daniell'a  Ch.  Pr.  (2d  Am.  ed.)  1906 

15  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  2005,  1997. 

2006,  citing  Walker  v.  Wild,  1  Madd.  528.  »  Daniell's    Chr.    Pr.    (2d   Am.    ed  ) 

16  Glossop   v.   Harrison,    Cooper,   61;     1996,    1997.     But  see   Lafayette    Co    v. 
b.  c.  3  V.  &  B.  134.  Neely,  21  Fed.  R.  738. 


384  RECEIVERS.  [CHAP.  XVII. 

as  he  has  incurred;  and,  in  general,  give  as  full  a  description 
of  the  estate  in  his  hands,  and  of  his  actions  concerning  the  same 
as  is  practicable.4  If  a  person  has  not  been  paid  for  services 
rendered  to  the  estate,  but  has  agreed  with  the  receiver  to  be 
content  with  what  the  court  allows  him,  that  fact  should  be 
stated  in  the  account  together  with  a  description  of  the  services 
thus  performed.5  Allowances  to  counsel  will  usually  be  small, 
until  the  final  accounting  of  the  receiver,  when  the  full  amount 
earned  will  be  ordered  paid  to  them.6  Where  before  his  appoint- 
ment a  receiver  had  received  rent  paid  to  him  in  his  individual 
capacity  in  advance,  he  was  obliged  to  apportion  the  rent,  and 
to  account  for  so  much  of  it  as  was  paid  for  the  time  during 
which  he  acted  as  receiver  of  the  property,  for  the  use  of  which 
the  rent  was  paid.7  Exceptions  will  not  lie  to  the  master's  report 
upon  a  receiver's  accounting,  the  master  acting  in  the  place  of 
the  court  in  a  judicial  and  not  in  a  ministerial  capacity.8  Should 
the  receiver  or  any  other  party  to  the  accounting  feel  aggrieved 
at  a  ruling  of  the  master,  he  should  take  an  exception  at  the 
time,9  and  subsequently  petition  the  court  to  refer  the  matter  back 
to  the  master  for  correction.10  The  court's  duty  upon  such  a 
petition  consists  in  reviewing  the  principles  and  rules  adopted 
and  followed  by  the  master  in  allowing  the  receiver's  accounts, 
rather  than  in  examining  the  items  of  the  account  in  detail,  or  the 
evidence  upon  which  those  items  are  severally  founded  ;  the  latter 
duty  belonging  more  especially  to  the  province  of  the  master 
acting  in  his  judicial  capacity,  analogous  to  the  province  and  duty 
of  a  jury  on  questions  of  fact.11  In  a  proper  case,  the  receiver, 
as  well  as  any  other  party  interested,  majr  appeal  to  the  Supreme 
Court  from  the  final  decree  entered  after  his  accounting.12 

§  258.    Compensation    of    Receivers.  —  The    compensation    of    a 
receiver  is  usually  fixed  in  the  first  instance  by  the   master,1 

4  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1996,         9  Cowdrey  v.  Railroad  Co.,  1  Woods, 
1997  ;    Hooper  v.  Winston,  24  111.  353  ;     331,  833. 

Hinckley  v.  Railroad  Co.,  100  U.  S.  153  ;  l0  Cowdrey  v.  R.  R.  Co  ,  1  Woods,  331. 

Attorney-General  v.  North  American  Life  u  Cowdrey  ».  Railroad  Co.,  1  Woods, 

Ins.  Co.,  89  N.  Y.  94, 107  ;  Bourne  v.  May-  331,  334. 

bin,  3  Woods,  724,  741  ;  Equity  Rule  79.  12  Hinckley  v.  Oilman  C.  &  S.  R.  R.  Co., 

5  Adams  v.  Woods,  8  Cal.  306.  94  TJ.  S.  467  ;  Hinckley  v.  Railroad  Co., 
e  Central  Trust  Co.  v.  Wabash,  St.  L.  100  U.  S.  153. 

&  P.  Ry.  Co.,  23  Fed.  R.  675.  §  258.   l  Cowdrey  v.  Railroad  Co.,  1 

7  In  re  Allin,  8  Fed.  R.  753.  Woods,  331,  341 ;    Central  Trust    Co.  v. 

8  Cowdrey  v.  Railroad  Co.,  1  Woods,  Wabash,  St.  L.  &  P.  Ry.  Co.,  32  Fed.  R. 
331,  334.  187. 


§  257.]  REMOVAL   OF   RECEIVERS.  385 

with  whose  determination  the  court  will  not  ordinarily  interfere.2 
The  compensation  will  rarely,  if  ever,  be  increased  upon  appeal.3 
Where  the  court  has  fixed  a  receiver's  compensation  in  advance, 
it  has  the  power  to  award  him  an  additional  sum  for  extraordin- 
ary labors.4  Concerning  the  rules  regulating  the  amount  of  a 
receiver's  compensation,  Mr.  Justice  Bradley  said  :  "  It  would 
hardly  be  a  proper  rule'  for  governing  the  case,  to  inquire  what 
another  even  competent  person  would  have  been  willing  to  do 
the  work  for.  The  receiver's  office  is  not  put  up  at  auction. 
His  compensation  is  not  fixed  on  that  principle  at  all.  The 
chancellor  selects  a  person  whom  he  regards  as  competent  and 
trustworthy,  and  the  amount  of  compensation  is  graduated  some- 
what by  the  duties  and  somewhat  by  the  responsibilities  of  the 
situation."  5  In  cases  of  moderate  amount,  a  commission  of  five 
per  cent  upon  the  receipts  and  disbursements  is  not  unusual.6 
Where  the  amounts  received  and  disbursed  are  large,  it  is  cus- 
tomary to  pay  the  receiver  a  salary  or  a  lump  sum  graduated 
according  to  the  amount  of  his  time  employed,  the  value  of  the 
property,  the  difficulty  of  his  task,  and  the  success  of  his  admin- 
istration.7 It  has  been  said  that  the  peculiar  duties  and  respon- 
sibilities and  accountability  of  a  receiver  of  a  railroad  entitle  him 
to  a  larger  amount  than  would  be  demanded  by  the  head  officer 
of  a  railroad  of  the  same  size  and  business.8  Accordingly,  re- 
ceivers of  railroads  have  been  frequently  allowed  as  much  as 
$10,000  a  year;9  and  in  one  case  two  receivers  were  each  al- 
lowed $70,000  for  three  and  a  half  years'   work.10 

§259.  Removal  of  Receivers. — A  receiver  may  be  removed 
for  misconduct  in  office,1  or  because   his  original  appointment 

2  Cowdrey  v.  Railroad  Co.,  1  Woods,  Co.  v.  Wabash,  St.  L.  &  P.  Ry.   Co.,  32 

331,  341 ;  Central  Trust  Co.  v.  Wabash,  Fed.  R.  187. 

St.  L.  &  P.  Ry.  Co.,  32  Fed.  R.  187.  8  Bradley,  J.,  in  Cowdrey  v.  Railroad 

s  Hinckley  v.  Railroad  Co.,  100  U.  S.  Co.,   1  Woods,  331,  347.     Approved   by 

153.  Brewer,  J.,  in  Central  Trust  Co.  v.  Wa- 

4  Farmers'  L.  &  Tr.  Co.  v.  Central  R.  R.  bash,  St.  L.  &  P.  Ry .  Co.,  32  Fed.  R.  187, 

of  Iowa,  8  Fed.  R.  60.  188. 

6  Cowdrey  v.  Railroad  Co.,  1  Woods,  9  Hinckley  v.  Railroad  Co.,  100  U.  S. 

331,  345,  346.     Approved  by  Brewer,  J.,  153;  Cowdrey  v.  Railroad  Co.,  1  Woods, 

in  Central  Trust  Co.  v.  Wabash,  St.  L.  &  331,  347.    But  see  Farmers'  L.  &  Tr.  Co. 

P.  Ry.  Co.,  32  Fed.  R.  187,  188.  v.  Central  R.  R.  of  Iowa,  8  Fed.  R.  60. 

6  Cowdrey  v.  Railroad  Co.,  1  Woods,  10  Central  Trust  Co.  v.  Wabash,  St.  L. 
331,  346  ;  Day  v.  Croft,  2  Beav.  488.  &  P.  Ry  Co.,  32  Fed.  R.  187. 

7  Cowdrey  v.  Railroad  Co.,  1  Woods,  §  259.  »  Handy  v.  Cleveland  &  Marietta 
331,  3  Hi ;  E  aimers'  L.  &  Tr.  Co.  v.  Central  R.  R.  Co.,  31  Fed.  R.  689 ;  Atkins  v.  Wa- 
R.  R.  of  Iowa,  8  Fed.  R.  60 ;  Central  Trust     bash,  St.  L.  &  P.  Ry.  Co.,  29  Fed.  R.  101. 

25 


386  RECEIVERS.  [CHAP.  XVII. 

was  obtained  by  collusion  or  fraud,2  or  was  improper  on  account 
of  his  interest  in  the  subject  of  the  receivership  or  connection 
with  the  parties  in  interest.3  Instances  of  such  misconduct 
as  will  be  a  cause  for  the  removal  of  a  receiver  are  unlawful 
discrimination  in  charges  between  different  shippers  upon  a 
railroad;4  the  purchase  of  supplies  for  the  purpose  of  the 
receivership  from  a  firm  or  corporation  in  which  he  is  largel}r 
interested  ;5  and  in  the  case  of  two  receivers,  where  they  are  un- 
able to  act  in  harmony,  and  the  interests  of  the  estate  suffer  from 
their  discord.6  A  receiver  will  not  be  removed  or  discharged 
at  his  own  request  except  for  good  cause  shown,  nor  ordinarily 
for  a  reason  which  he  knew  or  had  ground  to  anticipate  when  he 
accepted  the  receivership.7  Thus  a  receiver  will  not  ordinarily 
be  removed  upon  the  sole  ground  that  the  duties  of  his  office 
interfere  with  his  private  business.8  A  receiver  may  be  removed 
at  his  own  request  when  by  reason  of  blindness  he  has  become 
physically  incapable  of  performing  the  duties  of  his  receivership.9 
Ordinarily,  a  receiver  can  only  be  removed  by  the  court  which  ap- 
pointed him,10  upon  an  application  made  in  the  suit  in  which  his 
appointment  was  made.11  A  Federal  court  may,  however,  after  the 
removal  of  a  suit  remove  a  receiver  therein  appointed  by  a  State 
court.12  And  it  has  been  held  that  when  a  Circuit  Court  of  the 
United  States  has  appointed  a  receiver  of  a  line  of  railroads 
running  through  another  circuit,  as  well  as  through  that  wherein 
the  appointment  is  made,  his  authority  in  the  other  circuit  is 
recognized  merely  by  judicial  comity,  and  he  may  be  removed 
from  all   control   over   property  therein   by   the    Federal  court 

2  0'Mahoneyt\Belmont,62N.  Y.  133;  Smith  v.  Vaughan,  Ridg.  temp.  Hardw. 
6.  c.  37  N.  Y.  Superior  Court,  223.  251 ;  Beach  on  Receivers,  §  782. 

3  Atkins   v.  Wabash,  St.  L.  &  P.  Ry.         8  Beers  v.  Chelsea  Bank,  4  Edw.  Ch. 
Co.,  29  Fed.  R.  161.  (^T-  Y)  277.     But  see  Purdy  v.  Rapalye 

*  Handy  v.  Cleveland  &  Marietta  R.  R.  (N.  Y.   Chancery,    1835);    Edwards    on 

Co.,  31  Fed.  R.  689  ;   Atkins  v.  Wabash,  Receivers,  661 ;     Beach    on    Receivers, 

St.  L.  &  P.  Ry.  Co.,  29  Fed  R.  161.    But  §  782. 

see  Central  Trust  Co.  v.  Ohio  Cent.  R.  R.  9  Richardson  v.  Ward,  6  Madd.  266. 

Co.,  23  Fed.  R.  306.  10  Young  v.  Montgomery  &  E.  R.  R.  Co., 

s  Atkins  v.  Wabash,  St.  L.  &  P.  Ry.  2  Woods,  606,  618 ;  Alabama  &  C.  R.  R. 

Co.,  29  Fed.  R.  161.  Co.  v.  Jones,  7  N.  B.  R.  145,  169;  Beach 

6  Meier  v.  Kansas  Pacific  R.   R.  Co.,  on  Receivers,  §§  777,  778. 

5  Dill.  476.     But  see  Conner  v.  Belden,  u  Davis  v.  Michelbacher  (S.  C.  Wis.}, 

8  Daly  (N.  Y.  C.  P.)  257.  31  N.  W.  R.  168;   Beach  on  Receivers, 

*  Richardson  v.  Ward,  6  Madd.  266 ;  §§  777,  778. 

Beers  v.  Chelsea  Bank,  4  Edw.  Ch.  (N.  Y.)  12  Texas  &  St.  L.  Ry.  Co.  v.  Rust,  17 

277  ;  In  re  Lytle,  3  Paige  Ch.  (N.  Y.)  251 ;  Fed.  R.  275. 


§  260]  DISCHARGE   OF   A  RECEIVER  337 

there  held  upon  a  bill  there  filed.13  When  a  receiver  is  removed, 
the  court  usually  appoints  some  one  in  his  place.  Whether  a 
receiver  who  is  not  a  party  to  a  suit  can  appeal  from  an  order 
for  his  removal  is  doubtful.14 

§  260.  Discharge  of  a  Receiver.  —  The  discharge  of  a  receiver 
is  a  termination  of  the  receivership,  and  no  successor  to  him  is 
then  appointed.1  It  will  be  ordered  when  the  court  is  satisfied 
either  that  no  occasion  for  a  receivership  existed  when  the 
appointment  was  made,2  or  that  in  the  course  of  subsequent 
events  the  necessity  for  the  receivership  has  ceased.3  Ordinarily, 
a  receiver  can  be  discharged  only  by  the  court  that  appointed 
him.4  After  the  removal  of  a  case  from  a  State  to  a  Federal 
court,  the  Federal  court  may  discharge  a  receiver  therein  ap- 
pointed.5 Any  person  injured  by  the  appointment  of  a  receiver 
can  move  for  his  discharge  although  not  a  party  to  the  suit  in 
which  he  was  appointed.6  The  motion  should  be  made  on 
notice  to  all  parties  interested.7  A  motion  for  the  discharge  of 
a  receiver  may  be  denied  on  account  of  the  laches  of  the  moving 
party.8  A  receiver  of  the  estate  of  an  infant  will  not  be  dis- 
charged until  a  year  after  the  infant's  majority,  unless  the  ward 
after  majority  consents  to  his  discharge.9  The  receiver  will  not 
be  discharged  at  the  motion  of  the  party  who  procured  his  ap- 
pointment, if  other  parties  who  have  acquired  an  interest  in 
the  receivership  object.10    The  entry  of  a  final  decree  which  does 

13  Atkins  v.  Wabash,  St.  L.  &  P.  Ry.  Fed.  R.  275  ;  Mahoney  Mining  Co.  v. 
Co.,  29  Fed.  R.  161.  But  see  Central  Bennett,  4  Saw.  289.  As  to  the  dispo- 
Trust  Co.  v.  Wabash,  St.  L.  &  P.  Ry.  Co.,  sition  of  the  money  in  the  hands  of  a  re- 
29  Fed.  R.  618 ;  Muller  v.  Dows,  94  U.  S.  ceiver  thus  discharged,  see  Mack  v.  Jones, 
414 ;  Young  v.  Montgomery  &  E.  R.  R.  31  Fed.  R.  189,  196. 

Co.,  2  Woods,  606,  618;  Alabama  &  C.  6  Thomas  v.  Brigstocke,  4   Russ.  64; 

R.  R.  Co.,  v.  Jones,  7  N.  B.  R.  145,  169.  Grenfell  v.  Dean  of  Windsor,  2  Beav.  544  ; 

14  See  Conner  v.  Belden,  8  Daly  (N.  Y.  Milwaukie  &  Minnesota  R.  It.  Co.  v. 
C.  P.),  257  ;  Wilson  v.  Barney,    5   Hun,  Soutter,  2  Wall.  510. 

(N.  Y.)  257 ;  Connolly  v.  Kretz,  78  N.  Y.  7  Davis  v.  Duke  of  Marlborough,   2 

620.  Swanst.  108,  118  ;  Bainbrigge  v.  Blair,  3 

§  260.   J  Beach  on  Receivers,  §  791.  Beav.  421,  423. 

2  Lavender  v.  Lavender,  Irish  Rep.  9  8  Allen  v.  Dallas   &  W.  R.  R.  Co.,  3 

Eq.  593 ;  Furlong  v.  Edwards,  3  Md.  99  ;  Woods,  316,  331 ;   National    Mechanics' 

Sage  v.  Memphis  &  L  R.  R.  R.  Co.,  18  Banking  Assn.  v.  Mariposa  Co.,  60  Barb. 

Fed.  R.  571  ;  s.  c.  125  U.  S.  361.  (N.  Y.)  423  ;  Hazard  v.  Credit  Mobilier 

8  Davis  v.  Duke  of  Marlborough,  2  of  America,  38  Fed.  R.  195. 

Swanst.  108,  168 ;  Bainbrigge  v.  Blair,  3  9  Matter  of  Van  Home,  7  Paige  Cli. 

Beav.  421.  (N.  Y.)   46  ;    Wildridge   v.    McKane,    2 

4  Young  U.Montgomery  &  E.  R.  R.  Co.,  Molloy,  545.  See  also  Bainbrigge  v. 
2  Woods,  606  ;  Beach  on  Receivers,  §  791.  Blair,  3  Beav.  421. 

5  Texas  &  St.  L.  Ry.  Co.  v.  Rust,  17  10  Bainbrigge  v.  Blair,  3   Beav.  421 ; 


388 


RECEIVERS. 


[CHAP.  XVII 


not  provide  for  the  continuance  of  a  receivership  supersedes  the 
appointment  of  a  receiver.11  It  has  been  held  that  the  discharge 
of  a  receiver  by  a  decree  cannot  be  set  aside  after  the  term  at 
which  it  was  made.12  The  discharge  of  a  receiver  terminates  his 
liability  for  acts  done  in  his  official  capacity.13  After  a  receiver's 
discharge  damages  to  the  estate  resulting  from  his  mismanage- 
ment cannot  be  recovered  from  the  sureties  upon  an  injunction 
bond  concurrent  with  his  appointment.14 


People  v.  Globe  Mutual  Life  Ins.  Co.,  67 
How.  Pr.  (N-  Y.)  481 ;  Fay  v.  Erie  &  K. 
R.  R.  Bank,  Hairing.  (Mich.)  194.  See, 
however,  Davis  v.  Duke  of  Marlborough, 
2  Swanst.  108,  168  ;  Whiteside  v.  Prender- 
gast,  2  Barb.  Ch.  (N.  Y.)  471. 


"  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  1765. 

i2  Davis  v.  Duncan,  19  Fed.  R.  477. 

13  Davis  v.  Duncan,  19  Fed.  R.  477; 
White  v.  Keokuk  &  D.  M.  Ry.  Co.,  52 
Iowa,  97. 

w  Lehman  v.  M'Quown,  31  Fed.  R.  138. 


§  261.]        THE  WRIT  OF  NE  EXEAT  REPUBLICA.  389 


CHAPTER   XVIII. 

THE   WRIT   OF   NE   EXEAT   REPUBLICA. 

§  261.  Definition  of  the  "Writ  of  Ne  Exeat  Republica,  and  when 
it  will  lasue.  —  The  writ  of  ne  exeat  republica  is  a  writ  which 
issues  from  a  Federal  court  of  equity  to  restrain  a  defendant  to 
a  suit  therein  from  departing  from  the  United  States  without  the 
leave  of  the  court.1  In  England  it  was  called  ne  exeat  regno, 
and  was  considered  a  writ  of  high  prerogative.  It  was  originally 
applicable  to  purposes  of  state  only,  but  afterwards  extended  to 
private  transactions.3  In  the  United  States  the  writ  has  hitherto 
been  issued  only  at  the  request  of  a  private  party.  The  Revised 
Statutes  provide  that  "  writs  of  ne  exeat  may  be  granted  by  any 
justice  of  the  Supreme  Court,  in  cases  where  they  might  be 
granted  by  the  Supreme  Court ;  and  by  any  circuit  justice  or 
circuit  judge,  in  cases  where  they  might  be  granted  by  the  cir- 
cuit court  of  which  he  is  a  judge.  But  no  writ  of  ne  exeat  shall 
be  granted  unless  a  suit  in  equity  is  commenced,  and  satisfactory 
proof  is  made  to  the  court  or  judge  granting  the  same  that  the 
defendant  designs  quickly  to  depart  from  the  United  States."  3 
It  has  been  held  that  the  writ  cannot  be  granted  by  a  judge  of 
the  District  Court,4  except  when  holding  a  court  of  equity.5 
The  intention  of  the  defendant  to  depart  from  the  judicial  dis- 
trict is  not  enough  to  authorize  the  issue  of  the  writ.6  The 
claim  of  the  party  applying  for  the  writ  must  be  one  enforceable 
by  a  suit  in  a  court  of  equity  ; 7  except  where  a  decree  for  perma- 
nent alimony  has  been  entered  and  no  appeal  therefrom  is  pend- 
ing, in  which  case  the  English  rule  was  that  the  writ  might  issue 
to  compel  obedience  to  the  same.8     The  claim  must  be  for  the 

§  201.   l  See  Daniell's  Ch.  Pr.  (2d  Am.  5  Lewis  v.  Shainwald,  7  Saw.  403,  417, 

ed.)  1925.  418. 

a  Jackson  v.  Petrie,  10  Ves.  104  ;  Dan-  6  Loewenstcin  v.  Biernbaum,  8  Weekly 

jell's  Ch.  Pr.  (2d  Ara.  ed.)  1925  ;  Beamea  Notes  of  Cas.  (Pa.)  163. 
on  Ne  Exeat,  1-21.  7  Pearne  v.  Lisle,   Ambler,  75;    Sey- 

3  U.  S.  R.  S.  §  717.  ncour  v.  Hazard,  1  J.  Ch.  (N.  Y.)  1. 

*  Gernon  v.  Boecaline,  2  Wash.  130.  8  Pearne  v.  Lisle,  Ambler,  75 ;  Read  v 


390  THE   WRIT   OF   NE   EXEAT   EEPUBLICA.        [CHAP.  XVIII. 

payment  of  a  certain  fixed  sum  of  money.9  A  claim  for  un- 
liquidated damages  is  insufficient.10  Thus,  the  writ  cannot 
issue  under  a  bill  to  set  aside  a  bill  of  sale  of  a  vessel,  for  a 
return  of  the  vessel  or  her  value,  and  for  an  account  of  her 
earnings.11  The  debt  must  be  already  due.12  A  debt  which 
is  contingent,13  or  certain  but  future,14  is  insufficient.  The 
motives  for  the  defendant's  departure,  no  matter  how  innocent 
they  may  be,  —  as,  for  example,  that  he  is  about  to  sail  upon 
a  ship  of  which  he  is  captain,15  —  will  not  prevent  the  issue  of 
the  writ.16 

§  262.  Against  whom  the  "Writ  will  Issue.  —  The  writ  was  origi- 
nally confined  to  subjects  of  the  King  of  England.1  It  has  been 
extended,  however,  so  as  to  apply  to  foreigners  as  well  as  sub- 
jects of  the  country  from  the  courts  of  which  the  writ  issues,2 
and  where  the  court  has  jurisdiction,  the  writ  may  be  issued  at 
the  suit  of  one  foreigner  against  another.3  It  seems  that  the 
writ  may  be  issued  against  a  married  woman  in  a  suit  affecting 
her  separate  estate.4  The  writ  will  not  issue  against  a  defendant 
who  is  under  arrest  or  held  to  bail  in  an  action  at  law.5  The 
Constitution  provides  that  Senators  and  Representatives  shall,  in 
all  cases,  except  treason,  felony,  and  breach  of  the  peace,  be 
privileged  from  arrest  during  their  attendance  at  the  session  of 
their  respective  Houses,  and  in  going  to  and  returning  from  the 
same.6  And  the  Revised  Statutes,  that  whenever  any  writ  or 
process  is  sued  out  or  prosecuted  by  any  person  in  any  court  of 
the  United  States,  or  of  a  State,  or  by  any  judge  or  justice, 
whereby  the  person  of  any  public  minister  of  any  foreign  prince 
or  state,  authorized  and  received  as  such  by  the  President,  or 

Eead,  1  Ch.  Cas.  115;   Ex  parte  Whit-  15  Dick  v.  Swinton,  1  V.  &  B.  371. 

more,  1  Dickens,  143 ;  Shaftoe  v.  Shaftoe,  16  Stewart   v.   Graham,   19  Ves.   313  ; 

7  Ves.  171  ;  Street  v.  Street,  1  T.  &  R.  Darnell's  Ch.Pr.  (2d  Am.  ed.)  1934,1935. 

322 ;  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1926,  §  262.   *  Darnell's  Ch.  Pr.  (2d  Am.  ed.) 

1927.  1933  ;  Beames  on  Ne  Exeat,  1-20. 

9  Graham  v.  Stucken,  4  Blatchf.  50 ;  2  Flack  v.  Holm,   1    J.    &   W.   405 ; 

Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1931.  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1933, 1934. 

10  Graham  v.  Stucken,  4  Blatchf.  50.  8  DeCarriere  v.  DeCalonne,  4  Ves.  577 ; 

"  Graham  v.  Stucken,  4  Blatchf.  50.  Mitchell  v.  Bunch,  2  Paige  (N.  Y.),  606. 

12  Whitehouse  v.  Partridge,  3  Swanst.  4  Moore  v.  Hudson,  Mad.  &  Geld.  218 ; 
365,  377  ;  Seymour  v.  Hazard,  1  J.  Ch.  Moore  v.  Meynell,  1  Dickens,  30 ;  Daniell's 
(N.  Y.)  1.  Ch.  Pr.  (2d  Am.  ed.)  191. 

13  Anon.,  1  Atk.  521.  6  Raynes  v.  Wyse,  2  Meriv.  472 ;  Dan- 
»  Whitehouse  v.  Partridge,  3  Swanst.     iell's  Ch.  Pr.  (2d  Am.  ed.)  1930,  1931. 

365,  377 ;   Seymour  v.  Hazard,  1  J.  Ch.  6  Constitution,  Article  I.  §  6. 

(N.  Y.)  1. 


§  263.]      PRACTICE   IN   OBTAINING   THE   WRIT   OF    NE   EXEAT.  391 

any  domestic  or  domestic  servant  of  any  such  minister,  is  arrested 
or  imprisoned,  or  his  goods  or  chattels  are  distrained,  seized,  or 
attached,  such  writ  or  process  shall  be  deemed  void.7  When- 
ever any  writ  or  process  is  sued  out  in  violation  of  this  statute, 
every  person  by  whom  the  same  is  obtained  or  prosecuted, 
whether  as  party  or  as  attorney  or  solicitor,  and  every  officer 
concerned  in  executing  it,  is  deemed  a  violator  of  the  laws  of  na-. 
tions  and  a  disturber  of  the  public  repose,  and  is  liable  to  impris- 
onment for  not  more  than  three  years,  and  a  fine  at  the  discretion 
of  the  court.8  These  regulations  do  not  apply  to  any  case  where 
the  person  against  whom  the  process  is  issued  is  a  citizen  or  in- 
habitant of  the  United  States  in  the  service  of  a  public  minister, 
and  the  process  is  founded  upon  a  debt  contracted  before  he 
entered  upon  such  service  ;  nor  to  any  case  where  the  person 
against  whom  the  process  issued  is  a  domestic  servant  of  a  pub- 
lic minister,  unless  the  name  of  the  servant  has,  before  the 
issuing  thereof,  been  registered  in  the  Department  of  State,  and 
transmitted  by  the  Secretary  of  State  to  the  marshal  of  the  Dis- 
trict of  Columbia,  who  is  required,  upon  the  receipt  thereof,  to 
post  the  same  in  some  public  place  in  his  office.9  All  persons 
may  have  access  to  the  list  of  names  so  posted  in  the  marshal's 
office,  and  may  take  copies  without  a  fee.10 

§  263.  Practice  in  obtaining  the  "Writ  of  Ne  Exeat.  —  The  ap- 
plication for  a  writ  of  ne  exeat  republica  may  be  made  ex  parte, 
even  after  the  defendant  has  appeared.1  The  reason  for  allow- 
ing this  is,  that  notice  might  frustrate  the  object  of  the  motion 
by  giving  the  party  an  opportunity  of  removing  himself  out  of 
the  jurisdiction.2  It  has  been  held  in  England  that  the  writ  can- 
not be  obtained  until  a  bill  has  been  filed.3  The  equity  rules 
provide  that  the  writ  shall  be  asked  for  in  the  bill,  when  it  is 
required  "  pending  the  suit."  4  But  it  has  been  held  that  the 
writ  may  be  granted  at  or  after  the  decree,  although  the  bill 
contains   no   such   prayer.5     And   by   the   English  practice,  no 

7  U.  S.  R.  S.  §  4063.     See   Ex  parte  2  Elliot  v.  Sinclair,  Jacob,  645. 
Cabrera,    1   Wash.    C.   C   232  ;   United  8  Ex  parte  Brunker,  3  P.  Wins.  312  ; 
States  v.  Benner,  Baldwin,  234 ;  United  Mattocks   v.  Tremain,  3  J.  Ch.   (N.  Y.) 
States  v.  Lafontaine,  4  Cranch  C.  C.  173.  75.     But  see  Loyd  v.  Cardy,  Prec.  in  Ch. 

8  U.  S.  R.  S.  §  4064.  171. 

9  U.  S.  R.  S.  §  4065.                                      4  Rule  21.    But  see  the  language  of 
w  U.  S.  R.  S.  §  4066.  Lord  Eldon  in  Collinson  v. ,  18  Ves. 

§  263.   i  Collinson  v. ,  18  Ves.  353 ;     353. 

Elliot  v.  Sinclair,  Jacob,  545.  5  Lewis  v.  Shainwald,  7  Saw.  403,  417 


392  THE    WRIT    OF    XE    EXEAT    REPUBLICA.         [CHAP.  XVIII. 

prayer  in  the  bill  was  required.6  The  writ  must  be  supported 
by  an  affidavit  made  by  the  complainant  himself,  or  some  person 
acquainted  with  the  facts.7  The  affidavit  must  be  positive  as  to 
the  facts,  not  merely  upon  information  and  belief,8  except  in  the 
case  of  an  account,  when  the  plaintiff  may  swear  that,  to  the 
best  of  his  belief,  the  sum  named  will  be  due  to  him  on  the  bal- 
ance of  the  account.9  A  writ  was  discharged  when  it  appeared 
from  the  affidavit  that  the  affiant  could  not  have  had  personal 
knowledge  of  the  transaction  to  which  he  swore  positively.10 
The  affidavit  must  be  positive  as  to  the  intention  of  the  defendant 
to  go  abroad,  or  to  his  threats  or  declarations,  or  those  of  members 
of  his  family  or  his  agents,  showing  such  an  intention  on  his  part.11 
An  affidavit  stating  information  from  a  stranger  will  ordinarily 
be  insufficient.12  It  is  prudent  to  state  in  the  affidavit  that  the 
debt  will  be  endangered  by  the  defendant's  quitting  the  coun- 
try.13 Deficiencies  in  the  affidavit  may  be  supplied  by  admis- 
sions in  the  answer.14  The  court  may  require  as  a  condition  for 
the  issue  of  the  writ  that  the  complainant  give  an  undertaking 
to  respond  in  damages  should  the  writ  be  afterwards  discharged.15 
The  writ  is  directed  to  the  marshal,  and  is  in  substantially  the 
following  form  :  — 

The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the  Southern  District  of  New  York  : 
Greeting,  —  Whereas  it  is  represented  to  us  in  our  Circuit  Court 
of  the  United  States  for  the  Southern  District  of  New  York  in  equity, 
on  the  part  of  John  Aber,  complainant,  against  Charles  Dutton, 
defendant,  (among  other  things)  that  he,  the  said  defendant,  is  greatly 
indebted  to  the  said  complainant  and  designs  quickly  to  go  into 
parts  without  the  United  States  (as  by  oath  made  on  that  behalf 
appears),  which  tends  to  the  great  prejudice  and  damage  of  the  said 
complainant.     Therefore,  in  order   to    prevent   this   injustice,   we   do 

6  Collinson  v. ,18  Ves.  353;  Lewis  Watts,  2  C.  P.  Cooper  temp.  Cottenham, 

v.  Shainwald,  7  Saw.  403.  416,  417.  257. 

7  Collinson  v. ,  18  Ves.  353  ;  Mat-  12     Oldham  v.  Oldham,  7  Ves.  410. 

tocks  v.  Tremain,  3  J.  Ch.  (N.  Y.)  75.  13  Mattocks  v.  Tremain,  3  J.  Ch.  (N.  Y  ) 

8  Rico  v.  Gualtier,  3  Atk  501  ;  Jack-  75,  76  ;  Baker  v.  Haily,  2  Dickens,  632  ; 
son  v.  Petrie,  10  Ves.  164;  Mattocks  v.  Daniell's  Oh.  Pr.  (5th  Am.  ed.)  1708,  and 
Tremain,  3  J.  Ch.  (N.  Y.)  75.  cases  cited.     But  see  McGehee  v.  Polk, 

9  Pico  v.  Gualtier,  3  Atk.  501 ;  Jack-  24  Ga.  406,  412. 

son  v.  Petrie,  10  Ves.  164.  M  Roddam  v.  Hetherington,  5  Ves.  91, 

J0  Roddam  v.  Hetherington,  5  Ves.  01.  95. 

11  Oldham    v.    Oldham,    7   Ves.   410;  15  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  1708. 

Collinson  v. ,  18  Ves.  353 ;  Knight  v. 


263]      PRACTICE    IN   OBTAINING   THE   WRIT   OF   NE   EXEAT. 


593 


hereby  command  you,  that  you  do,  without  delay,  cause  the  said 
Charles  Dutton  personally  to  appear  before  you,  and  give  sufficient 

bail  or  security  in  the  sum  of  $ that  the  said  Charles  Dutton  will 

not  go,  or  attempt  to  go,  into  parts  without  the  United  States,  without 
leave  of  our  said  Court ;  and  in  case  the  said  Charles  Dutton  shall 
refuse  to  give  such  Bail  or  Security,  then  you  are  to  commit  the  said 
Charles  Dutton  to  our  next  prison,  there  to  be  kept  in  safe  custody, 
until  he  shall  do  it  of  his  own  accord  ;  and,  when  you  shall  have  taken 
such  security,  you  are  forthwith  to  make  and  return  a  certificate  thereof 
to  us  in  our  said  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York  distinctly  and  plainly  under  your  hand,  together 
with  this  Writ. 

Witness,  the  Honorable  MELVILLE  W.  FULLER,  Chief  Justice  of 
the  Supreme  Court  of  the  United  States,  at  the  City  of  New  York,  in 
the  County  and  State  of  New  York,  the  thirteenth  day  of  November, 
one  thousand  eight  hundred  and  eighty-nine.16 

The  writ  should  be  endorsed  with  the  amount  of  the  sura  de- 
manded written  out  in  words  at  length.17  When  it  is  issued  against 
a  personal  representative  by  a  person  claiming  a  share  of  the  re- 
siduary estate,  it  should  be  endorsed  with  the  whole  amount  due 
from  the  defendant,  not  only  to  the  plaintiff,  but  to  all  persons  in- 
terested in  the  estate.18  When  the  writ  is  endorsed  for  a  larger 
sum  than  is  clue,  the  court  will  ordinarily  refuse  to  quash  it,  but 
will  require  the  defendant  to  give  security  only  for  so  much  as  is 
really  due.19  The  writ,  upon  its  issue,  must  be  delivered  to  the 
marshal.  It  is  his  duty  thereupon  to  execute  it  by  arresting  the 
defendant  named  in  it,  and  bringing  him  before  the  court.20  He 
has  no  power  to  break  open  doors  under  the  writ.21  The  de- 
fendant may  be  released  upon  giving  sufficient  security  to  sat- 
isfy the  marshal.22  After  executing  the  writ,  the  marshal  should 
make  a  return  of  what  he  has  done.23  The  defendant  may  move 
at  any  time  to  discharge  the  writ,  either  for  irregularity  or  upon 
the  merits,  by  disproving  the  charges  in  the  complainant's  affi- 
davits.24 But  it  has  been  said  by  Lord  Eldon,  that  where  the 
plaintiff  has  sworn  positively  to  the  debt  and  to  the  defendant's 

16  Beames  on  Ne  Exeat,  23,  24.  Wood,  T.  &  R.  332,  340 ;  Daniell's  Ch.  Pr. 

«  Beames  on  Ne  Exeat,  93.  (2d  Am.  ed.)  1043. 

18  Pannell  v.  Tayler,  T.  &  R.  96,  100.  23  Daniell's  Ch.  Pr.  (2d  Am  ed.)  1945; 

19  Pannell  v.  Tayler,  T.  &  R.  96,  100.  Impey  on  Sheriffs  (2d  ed.),  532. 

20  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1943.  24  Gernon  v.  Boecaline,  2  Wash.  130; 

21  Beanies  on  Ne  Exeat,  95.  Grant  v.  Grant,  3  liuss.  598,  002. 

22  Beames  on  Ne  Exeat,  96 ;  Boehm  r. 


394  THE  WRIT   OF  NE  EXEAT   KEPUBLICA.         [CHAP.  XVIII. 

declarations  of  his  intention  to  go  abroad,  the  defendant's  unsup- 
ported affidavit  will  be  insufficient  to  contradict  this.26  If  the 
writ  is  discharged,  another  writ  may  issue  upon  a  new  affidavit.26 
Upon  pa}Ttnent  into  court  of  enough  to  satisfy  the  plaintiff's 
claim,  the  writ  will  always  be  discharged.27  The  writ  may  be 
discharged  if  the  defendant  gives  sufficient  security  to  satisfy 
the  court.28  The  discharging  order  usually  enjoins  the  defendant 
from  bringing  an  action  of  false  imprisonment ; 29  and  the  prose- 
cution of  such  an  action  may  be  restrained  by  a  subsequent 
order.30  If  the  court  considers  the  writ  improperly  issued,  it 
may  direct  a  reference  to  a  master  to  ascertain  the  damages  sus- 
tained by  the  defendant,  and  direct  the  payment  to  him  of  the 
amount  found  due  by  the  sureties  upon  the  plaintiff's  undertak- 
ing.31 An  amendment  of  the  bill  which  does  not  materially  alter 
the  case  does  not  discharge  the  writ.32 

25  Amsinck  v.  Barklay,  8  Vesey,  594,     95 ;  Boon  v.  Collingwood,  1  Dickens,  115  ; 
597  ;  Jones  v.  Alephsin,  16  Vesey,  470,     Beanies  on  Ne  Exeat,  98,  99. 

471.  w  Darley  v.  Nicholson,  2  Dr.  &  War.  86. 

26  Gernon  v.  Boecaline,  2  Wash.  130.  8°  Darley  v.  Nicholson,  2  Dr.  &  War.  86. 

27  Evans  v.  Evans,  1  Ves.  Jr.  96.  31  Siohel  v.  Raphael,  4  L.  T.  n.  s.  114. 

28  Roddam  v.  Hetherington,  6  Ves.  91.  w  Grant  v.  Grant,  5  Russ.  189. 


§  264]  admissions.  395 


CHAPTER   XIX. 

EVIDENCE   AT   LAW   AND   IN   EQUITY. 

§  264.  Evidence  in  General.  —  The  Revised  Statutes  provide 
that  "the  mode  of  proof  in  the  trial  of  actions  at  common  law 
shall  be  by  oral  testimony  and  examination  of  witnesses  in  open 
court,  except  as  hereinafter  provided  ; " *  and  "  the  mode  of  proof 
in  causes  of  equity  and  of  admiralty  and  maritime  jurisdiction 
shall  be  according  to  rules  now  or  hereafter  prescribed  by  the 
Supreme  Court,  except  as  herein  specially  provided  for."2 
Evidence  consists  of  admissions  upon  the  record,  documents, 
and  the  testimony  of  witnesses.  No  objection  can  be  taken,  on 
an  appeal  to  the  Supreme  Court,  to  the  admissibility  in  evidence 
of  any  deposition,  deed,  grant,  or  other  exhibit  found  in  the 
record,  unless  the  record  shows  that  objection  was  taken  thereto 
in  the  court  below.3 

§  265.  Admissions.  —  Admissions  upon  the  record  are  either 
actual  or  constructive.  Actual  admissions  are  made  either  in 
the  pleadings  or  by  agreement.  Every  statement  of  a  fact  mate- 
rial to  the  issues  made  in  the  pleadings  or  other  documents  used 
in  support  of  the  claim  of  any  party  to  a  suit,  who  is  of  full  age, 
whether  sworn  to  or  not,1  may  be  used  as  evidence  against  him 
upon  the  hearing.  The  statement  by  a  defendant  that  he  be- 
lieves, or  is  informed  and  believes,  that  a  certain  fact  occurred, 
is  treated  as  an  admission  unless  coupled  with  some  clause  to 
prevent  its  being  so  considered.2  For  it  is  a  rule  in  equity  that 
what  the  defendant  believes,  the  court  will  believe.3  This  rule, 
however,  does  not  apply  to  the  statement  of  a  defendant  that  he 
believes  that  a  will  was  executed  as  charged  in  the  bill.4  Admis- 
sions in  an  answer  made  on  behalf  of  an  infant  cannot  be  used 

§264.      U.  S.  R.  S.  §861.    See  Beards-  2  Potter  v.  Potter,  1  Ves.  Sen.  274; 

ley  v.  Littell,  14  Blatchf.  102;   Ex  parte  Hill  v.  Binney,  6  Ves.  738. 
Fisk,  113  U.  S.  713.  8  Potter  v.  Potter,  1  Ves.  Sen.  274; 

2  U.  S.  R.  S.  §  862.     See  Blease  v.  Hill  v.  Binney,  6  Ves.  738. 
Garlington,  92  U.  S.  1.  *  Potter  v.  Potter,  1  Ves.   Sen.  274 ; 

8  Supreme  Court  Rule  13.  Davies  v.  Davies,  3  DeG.  &  Sm.  698. 

§  265.   i  Smith  v.  Potter,  3  Wis.  432. 


396  EVIDENCE   AT  LAW   AND   IN   EQUITY.  [CHAP.  XIX. 

against  him,5  unless  he  adopts  the  answer  after  he  has  reached 
his  majority.6  An  admission  of  one  defendant,  whether  in  his 
answer  or  otherwise,  is  not  evidence  against  any  of  his  co-defend- 
ants," who  is  not  his  partner8  or  who  does  not  derive  his  title 
from  him.9  The  parties  to  a  suit  may,  by  an  agreement  signed 
by  themselves  or  their  solicitors  or  made  in  open  court  by  their 
counsel,  admit  any  fact  as  proven,  or  allow  testimony  to  be  taken 
in  any  manner,  unless  they  thus  commit  an  act  repugnant  to 
public  policy.10  No  agreement  between  counsel  will  be  enforced 
unless  reduced  to  writing  or  made  in  open  court.11 

§  266.  Constructive  Admissions.  —  Constructive  admissions  are 
those  which  are  implied  by  law  from  a  party's  act.  A  construc- 
tive admission  is  made  by  the  plaintiff  when  he  files  no  general 
replication,  but  sets  the  cause  down  for  a  hearing  upon  bill  and 
answer  only ;  or  when,  in  his  bill,  he  does  not  expressly  waive 
an  answer  under  oath.  In  the  former  case,  he  admits  for  the 
purposes  of  the  suit  that  all  the  allegations  in  the  answer  are 
true  j1  in  the  latter,  that  all  are  true  which  he  cannot  contradict 
by  the  testimony  of  two  witnesses,  or  of  a  single  witness  with 
corroborating  circumstances.2  This  rule  does  not  apply,  however, 
unless  the  allegations  in  the  answer  are  made  positively.3  Thus, 
a  denial  according  to  the  defendant's  recollection  and  belief  is 
insufficient  for  this  purpose.4  So  is  an  allegation  upon  infor- 
mation and  belief.5  By  setting  down  a  plea  for  argument  the 
plaintiff  admits  the  truth  of  the  allegations  of  fact  therein  con- 
tained.6 Constructive  admissions  are  also  made  by  a  demurrer, 
a  plea,  or  a  default  in  pleading.     A  demurrer  admits  the  truth  of 

5  Leigh  v.  Ward,   2  Ventris,  72 ;   Ec-        n  Evans   v.  State  National  Bank,  19 

cleston  v.  Petty,  Oarthew,  79;  Savage  v.  Fed.  R.  676. 

Carroll,  1  Ball  &  Beatty,  548,  553 ;  Wrot-         §  266.   x  United    States    v.    Scott,    3 

tesley  v.  Bendish,  3  P.  Wms.  235.  Woods,  334;  Kennedy  v.  Baylor,  1  Wash. 

s  Hinde's  Ch.  Pr.  422.  (Va.)  162. 

7  Leeds  v.  Marine  Ins.  Co.,  2  Wheat.  2  Clark's   Executors   v.    Van   Riems- 

380;  Clark's  Executors  v.  VanRiemsdyk,  dyk,  9  Cranch,  153,  160;   Union  Bank  of 

9  Cranch,  153.  Georgetown   v.  Geary,    5  Pet.  99,  110  ; 

s  Crosse  v.  Bedingfield,  12  Simons,  35  ;  Seitz    v.   Mitchell,   94   U.   S.   580,    582  ; 

Clark's   Executors   v.  Van  Riemsdyk,  9  Vigel  v.  Hopp,  104  U.  S.  441. 
Cranch,  153,  156.  3  Carpenter  v.  Providence  Washington 

9  Field   >:  Holland,  6  Cranch,  8;   Os-  Ins.  Co.,  4  How.  185;  Taylor  v.  Luther, 

born  v.  Bank  of  United  States,  9  Wheat.  2   Sumner,  228 ;    Berry  v.   Sawyer,    19 

738.  Fed.  R.  286. 

io  Barker  v.  Dixie,  Reports  temp.  Hard-  4  Taylor  v.  Luther,  2  Sumner,  228. 

wicke,  252  ;  Owen  v.  Thomas,  3  M.  &  K.  6  Berry  v.  Sawyer,  19  Fed.  R.  286. 

353.  357  ;  Nixon  v.  Albion  Marine  Ins.  Co.,  6  Burrell  v.  Hack  ley,  35  Fed.  R.  833; 

L.  R.  2  Ex.  338.  Burrell  v.  Pratt,  35  Fed.  R.  834. 


§  267.]  DOCUMENTAEY   EVIDENCE.  397 

the  allegations  in  the  bill,7  but  not  of  conclusions  of  law  therein 
set  forth.8  A  plea  admits  the  truth  of  so  much  of  the  bill  as  it 
does  not  deny.9  A  default  by  the  defendant's  failing  to  file  a 
demurrer,  plea,  or  answer  to  the  bill  within  the  time  allowed  for 
that  purpose  entitles  the  plaintiff  to  enter  an  order  taking  the 
bill  as  confessed  by  him ;  whereupon  the  defendant  is  deemed  to 
admit  the  truth  of  the  allegations  in  the  bill.10  Formerly  in 
England  no  extra-judicial  admissions  of  a  defendant  could  be 
given  in  evidence  unless  they  had  been  charged  in  the  bill ;  but 
that  rule  probably  would  not  now  be  followed  here.11  Other 
testimony  also,  which  was  of  a  kind  likely  to  take  a  party  by 
surprise,  was  formerly  often  excluded  unless  the  pleadings  called 
attention  to  it.12 

§267.  Documentary  Evidence  in  General.  —  Documentary  evi- 
dence consists  of  all  those  matters  not  contained  in  depositions 
or  affidavits,  which  are  submitted  to  the  court  in  the  shape  of 
written  documents.  The  rules  regulating  its  admission  are  sub- 
stantially the  same  in  equity  as  at  common  law.1  In  equity, 
however,  such  documents  as  merely  require  proof  of  their  execu- 
tion or  of  the  handwriting  contained  in  them  may  be  admitted 
in  evidence  at  the  hearing  of  the  cause  if  accompanied  by  an 
affidavit  of  these  facts,  provided  that  an  order,  which  is  granted 
as  of  course,  has  been  obtained  and  served  upon  the  opposite 
side  at  least  two  days  before.2  In  some  cases,  the  courts  have 
permitted  the  proof  of  such  documents  by  word  of  mouth  under 
oath  at  the  hearing,  when  their  existence  and  execution  was  not 
denied  by  the  answer.3  According  to  the  old  English  practice, 
the  adverse  party  had  no  right,  in  the  absence  of  special  circum- 
stances, to  compel  before  the  hearing  the  production  of  any 
exhibit,  however  it  had  been  proved,  —  except,  perhaps,  when  the 
deposition  proving  it  had  set  it  out  verbatim;  nor  even  to  inspect 
it,  it  being  considered  that  a  party  should  not  before  the  hearing 

7  Pacific  Railroad  of  Missouri  v.  Mis-  *2  See  §  69,  and  Langdell's  Eq.PI.  §60. 
souri  Pacific  Ry.  Co.,  Ill  U.  S.  505,  522.  §  267.  1  Lake  v.  Philips,  1  Ch.  Rep.  110; 
See  §  106.  Stevens  v.  Cooper,  1  J.  Ch.  (N.  Y.)  425, 

8  Dillon    v.    Barnard,    21   Wall.  430.  429,  and  cases  cited. 

See  §  106.  *  Clare  v.  Wood,  1  Hare,  314. 

9  Farley  v.  Kittson,  120  U.  S.  303.  8  Wood    v.   Mann,    2    Sumner,   3l6  ; 

10  Rules  18,19.    See  §§  103-104,  ch.  vii.     Nesmith  v.  Calvert,  1  W.  &  M.  34;  At- 

11  See  §  69,  and  Smith  v.  Burnham,  torney-General  v.  Pearson,  7  Simons,  290, 
2   Sumnor,    612  ;   Jenkins  v.  Eldredge,  3     303. 

Story,  181 ;  Story's  Eq.  PL  §§  265  a. 


398  EVIDENCE   AT   LAW   AND   IN   EQUITY.  [CHAP.  XIX 

see  the  strength  of  the  cause,  or  any  deed,  to  pick  holes  in  it.4 
The  practice  in  the  Federal  courts  seems  to  be  otherwise.  It 
has  been  held  there  that,  in  equity  and  at  common  law,  either 
party  may  upon  motion  supported  by  affidavit,  which  affidavit 
may  be  controverted,  compel  the  other  party  to  produce  for  his 
inspection  on  the  trial  or  hearing  any  books  or  other  documents 
material  to  the  issues,  which  are  in  his  opponent's  possession  or 
under  his  opponent's  control.5  In  a  suit  against  the  heir-at-law 
to  establish  the  validity  of  a  will,  all  the  witnesses  to  the  will 
who  are  alive,  sane,  and  within  the  jurisdiction  of  the  court, 
must  be  examined;6  and  the  testator's  sanity  must  be  proved 
affirmatively.7  This  rule  does  not,  however,  apply  to  suits  to 
establish  the  trusts  of  a  will,  or  to  appoint  a  new  trustee,  or  in 
any  other  case  when  the  validity  of  the  will  is  not  directly  in 
issue.8 

§  268.  Federal  Statutes  regulating  Admission  of  Documentary 
Evidence.  —  The  Revised  Statutes  of  the  United  States  provide 
as  follows  concerning  the  admission  of  documentary  evidence  : 
"  Copies  of  any  books,  records,  papers,  or  documents  in  any 
of  the  executive  departments,  authenticated  under  the  seals  of 
such  departments,  respectively,  shall  be  admitted  in  evidence 
equally  with  the  originals  thereof."  *  "  Copies  of  any  documents, 
records,  books,  or  papers  in  the  office  of  the  solicitor  of  the 
treasury,  certified  by  him  under  the  seal  of  his  office,  or,  when 
his  office  is  vacant,  by  the  officer  acting  as  solicitor  for  the  time, 
shall  be  evidence  equally  with  the  originals."2  "Every  certifi- 
cate, assignment,  and  conveyance  executed  by  the  controller  of 
the  currency,  in  pursuance  of  law,  and  sealed  with  his  seal  of 
office,  shall  be  received  in  evidence  in  all  places  and  courts; 
and  all  copies  of  papers  in  his  office  certified  by  him  and  authen- 
ticated by  the  said  seal,  shall  in  all  cases  be  evidence  equally 

*  Da  vers  v.  Davers,  2  P.  Wms.  410.  v.  Schmeider,  9  Wall.  248 ;  Chadwick  v. 

5  Coit  v.  North  Carolina  Gold  Amal-  United  States,  3  Fed.  R.  750;  Block 
gamating  Co.,  9  Fed.  R.  577.  Cf.  U.  S.  v.  United  States,  7  Ct.  CI.  406  ;  United 
R.  S.  §  724.  But  see  Guyot  v.  Hilton,  32  States  v.  Liddle,  2  Wash.  205 ;  United 
Fed.  R.  743;  Colgate  v.  Compagnie  Fran-  States  v.  Benner,  Baldwin,  234;  Whiter, 
caise,  23  Fed.  R.  82.  Saint  Guirons,  Minor  (Ala.),  331 ;  Catlett 

6  Bootle  v.  Blundell,  19  Ves.  494  b,  505.  v.  Pacific  Ins.  Co.,  1  Paine,  594 ;  Bleecker 

7  Harris  v.  Ingledew,  3  P.  Wms.  91;  v.  Bond,  3  Wash.  529;  Thompson  v.  Smith, 
Wallis  v.  Hodgeson,  2  Atk.  56.  2  Bond,  320 ;  Wetmore  v.  United  States, 

8  Bootle  v.  Blundell,  19  Ves.  494  b,  10  Pet.  647 ;  Wickliffe  v.  Hill,  3  Litt. 
505  ;  Concannon  v.  Cruise,  2  Molloy,332.  (Ky.)  330. 

§  268.  i  U.  S.  R.  S.  §  882.    See  Barney  2  U.  S.  R.  S.  §  883. 


§  268.]  DOCUMENTARY   EVIDENCE.  399 

with  the  originals.     An  impression  of  such  seal  directly  on  the 
paper  shall  be  as  valid  as  if  made  on  wax  or  wafer."  3     "  Copies 
of  the  organization  certificate  of  any  national  banking  associa- 
tion,   duly    certified    by    the    controller    of   the    currency,    and 
authenticated  by  his  seal  of  office,  shall  be  evidence  in  all  courts 
and  places  within  the  jurisdiction  of  the  United  States  of  the 
existence  of  the  association,  and  of  every  matter  which  could  be 
proved  by  the  production  of  the  original  certificate."4     "When 
suit  is  brought  in  any  case  of  delinquency  of  a  revenue  officer, 
or  other  person  accountable  for  public  money,  a  transcript  from 
the  books  and  proceedings  of  the  treasury  department,  certified 
by  the  register  and  authenticated  under  the  seal  of  the  depart- 
ment, or,  when  the  suit  involves  the  accounts  of  the  war  or 
navy  departments,  certified  by  the  auditors  respectively  charged 
with  the  examination  of  those  accounts,  and  authenticated  under 
the  seal  of  the  treasury  department,  shall  be  admitted  as  evi- 
dence, and  the  court  trying  the  cause  shall  be  authorized  to 
grant  judgment   and    award   execution   accordingly.      And   all 
copies  of  bonds,  contracts,  or  other  papers  relating  to,  or  con- 
nected with,  the  settlement  of  any  account  between  the  United 
States  and  an  individual,  when  certified  by  the  register,  or  by 
such  auditor,  as  the  case  may  be,  to  be  true  copies  of  the  origi- 
nals on  file,  and  authenticated  under  the  seal  of  the  department, 
may  be  annexed  to  such  transcripts,  and  shall  have  equal  validity, 
and  be  entitled  to  the  same  degree  of  credit  which  would  be  due 
to  the  original  papers  if  produced  and  authenticated  in  court: 
provided,   that  where  suit  is   brought   upon   a   bond   or   other 
sealed  instrument,  and  the  defendant  pleads  non  est  factum,  or 
makes  his  motion  to  the  court,  verifying  such  plea  or  motion  by 
his  oath,  the  court  may  take  the  same  into  consideration,  and, 
if  it  appears  to  be  necessary  for  the  attainment  of  justice,  may 
require  the  production  of  the  original  bond,  contract,  or  other 
paper  specified  in  such  affidavit."5     "Copies  of  the  quarterly 
returns   of  postmasters   and   of    any   papers   pertaining   to   the 
accounts  in  the  office  of  the  sixth  auditor,  and  transcripts  from 
the  money-order  account-books   of  the  post-office   department, 

8  United    States     Revised     Statutes,  ton   County  National  Bank  v.  Lee,  112 

§  884.  Mass.  621. 

*  U.  S.  R.  S.  §  885  ;  First  National  5  U.  S.  R.  S.  §  886 ;  Bechtel  v.  United 

Bank  v.  Kidd,  20  Minn.  234 ;  Washing-  States,  101  U.  S.  597. 


400  EVIDENCE   AT   LAW   AND   IN   EQUITY.  [CHAP.  XIX. 

when  certified  by  the  sixth  auditor  under  his  seal  of  office, 
shall  be  admitted  as  evidence  in  the  courts  of  the  United  States, 
in  civil  suits  and  criminal  prosecutions ;  and  in  any  civil  suit,  in 
case  of  delinquency  of  any  post-master  or  contractor,  a  statement 
of  the  account,  certified  as  aforesaid,  shall  be  admitted  in  evi- 
dence, and  the  court  shall  be  authorized  thereupon  to  give 
judgment  and  award  execution,  subject  to  the  provisions  of  law 
as  to  proceedings  in  such  civil  suits."6  "Copies  of  any  records, 
books,  or  papers  in  the  general  land  office,  authenticated  by 
the  seal  and  certified  by  the  commissioner  thereof,  or,  when  his 
office  is  vacant,  by  the  principal  clerk,  shall  be  evidence  equally 
with  the  originals  thereof.  And  literal  exemplifications  of  any 
such  record  shall  be  held,  when  so  introduced  in  evidence,  to  be 
of  the  same  validity  as  if  the  names  of  the  officers  signing  and 
countersigning  the  same  had  been  fully  inserted  in  such  record."7 
"Written  or  printed  copies  of  any  records,  books,  papers,  or 
drawings  belonging  to  the  patent  office,  and  of  letters  patent 
authenticated  by  the  seal  and  certified  by  the  commissioner  or 
acting  commissioner  thereof,  shall  be  evidence  in  all  cases  where- 
in the  originals  could  be  evidence  ;  and  an}7  person  making  appli- 
cation therefor,  and  paying  the  fees  required  by  law,  shall  have 
certified  copies  thereof." 8  "  Copies  of  the  specifications  and 
drawings  of  foreign  letters  patent,  certified  as  provided  in  the 
next  preceding  section,  shall  be  prima  facie  evidence  of  the  fact 
of  the  granting  of  such  letters  patent,  and  of  the  date  and  con- 
tents thereof."9  "  The  printed  copies  of  specifications  and  draw- 
ings of  patents,  which  the  commissioner  of  patents  is  authorized 
to  print  for  gratuitous  distribution,  and  to  deposit  in  the  capitals 
of  the  states  and  territories,  and  in  the  clerk's  offices  of  the  dis- 
trict courts,  shall,  when  certified  by  him  and  authenticated  by 
the  seal  of  his  office,  be  received  in  all  courts  as  evidence  of  all 
matters  therein  contained."10  "  Extracts  from  the  journals  of  the 
senate,  or  of  the  house  of  representatives,  and  of  the  executive 
journal  of  the  senate  when  the  injunction  of  secrecy  is  removed, 
certified  by  the  secretary  of  the  senate  or  by  the  clerk  of  the 

6  United     States    Revised     Statutes,  554;  Lawrence  v.  United  States,  2  Mc- 

§  889  ;  United  States  v.  Harnll,  McAllis-  Lean,  581. 

ter,  243  ;  United  States  v.  Hodge,  13  How.  7  U.  S.  R.  S.  §  891. 

478  ;  United  States  v.  Hilliard,  3  McLean,  8  u.  S.  R.  S.  §  892. 

324 ;  United  States  v.  Wilkinson,  12  How.  9  U.  S.  R.  S.  §  893. 

246  ;   Postmaster-General  v.  Rice,  Gilp.  10  U.  S.  R.  S.  §  894. 


§  268.]  ADMISSION    OF   DOCUMENTARY   EVIDENCE.  401 

house  of  representatives,  shall  be  admitted  as  evidence  in  the 
courts  of  the  United  States,  and  shall  have  the  same  force  and 
effect  as  the  originals  would  have  if  produced  and  authenticated 
in  court."  u  "  Copies  of  all  official  documents  and  papers  in 
the  office  of  any  consul,  vice-consul,  or  commercial  agent  of  the 
United  States,  and  of  all  official  entries  in  the  books  or  records 
of  any  such  office  certified  under  the  hand  and  seal  of  such  offi- 
cer, shall  be  admitted  in  evidence  in  the  courts  of  the  United 
States."  12  "  The  transcripts  into  new  books,  made  by  the  clerks 
of  the  district  courts  in  the  several  districts  of  Texas,  Florida, 
Wisconsin,  Minnesota,  Iowa,  and  Kansas,  in  pursuance  of  the 
act  of  June  twenty-seven,  eighteen  hundred  and  sixty-four, 
chapter  one  hundred  and  sixty-five,  from  the  records  and  jour- 
nals transferred  by  them  respectively,  under  the  said  act,  to  the 
clerks  of  the  circuit  courts  in  the  said  districts,  when  certified 
by  the  clerks  respectively  making  the  same  to  be  full  and  true 
copies  from  the  original  books,  shall  have  the  same  force  and 
effect  as  records  as  the  originals.  And  the  certificates  of  the 
clerks  of  said  circuit  courts,  respectively,  of  transcripts  of  any 
of  the  books  or  papers  so  transferred  to  them,  shall  be  received  in 
evidence  with  the  like  effect  as  if  made  by  the  clerk  of  the  court 
in  which  the  proceedings  were  had."  13  "  The  transcripts  into  new 
books  made  by  the  clerks  of  the  circuit  and  district  courts  for 
the  western  district  of  North  Carolina,  in  pursuance  of  the  act 
of  June  four,  eighteen  hundred  and  seventy-two,  chapter  two 
hundred  and  eighty -two,  when  certified  by  the  clerks  respec- 
tively making  the  same  to  be  full  and  true  copies  from  the 
original  books,  shall  have  the  same  force  and  effect  as  records 
as  the  originals.  And  the  certificates  of  the  clerks  of  said 
circuit  and  district  courts  respectively,  of  transcripts  of  any  of 
the  said  transcribed  records,  shall  also  be  received  in  evidence 
with  the  like  effect  as  if  made  by  the  proper  clerk  from  the 
originals  from  which  such  records  were  transcribed."  14  "  When 
the  record  of  any  judgment,  decree,  or  other  proceeding  of  any 
court  of  the  United  States  is  lost  or  destroyed,  any  party  or  per- 

11  U.  S.  R.  S.  §  805.  Adm.  3G7  ;  The  Atlantic,  Abbott's  Adm. 

12  U.  S.  R.  S.  §  896 ;  Levy  v.  Burley,  451 ;  United  States  v.  Mitchell,  2  Wash. 
2  Sumner,  355  ;  Matthews  v.  Offley,  3  478 ;  Johnson  v.  The  Coriolanus,  Crabbe, 
Sumner,    115 ;    Brown    v.    The  Indepen-  23'.). 

dence,  Crabbe,  64 ;  Church  v.  Hubbart,         13  U.  S.  R.  S.  §  897. 
2  Cranch,  186;  Lamb  v.  Briard,  Abbott's         "  U.  S.  R.  S.  §  898. 

26 


402  EVIDENCE   AT   LAW   AND   IN   EQUITY.  [CHAP.  XIX. 

son  interested  therein  may,  on  application  to  such  court,  and  on 
showing  to  its  satisfaction  that  the  same  was  lost  or  destroyed  with- 
out his  fault,  obtain  from  it  an  order  authorizing  such  defect  to 
be  supplied  by  a  duly  certified  copy  of  the  original  record,  where 
the  same  can  be  obtained  ;  and  such  certified  copy  shall  there- 
after have,  in  all  respects,  the  same  effect  as  the  original  record 
would  have  had."15  "When  any  such  record  is  lost  or  destroyed, 
and  the  defect  cannot  be  supplied  as  provided  in  the  preceding 
section,  any  party  or  person  interested  therein  may  make  a 
written  application  to  the  court  to  which  the  record  belonged, 
verified  by  affidavit,  showing  such  loss  or  destruction ;  that  the 
same  occurred  without  his  fault  or  neglect ;  that  certified  copies 
of  such  record  cannot  be  obtained  by  him  ;  and  showing  also  the 
substance  of  the  record  so  lost  or  destroyed,  and  that  the  loss  or 
destruction  thereof,  unless  supplied,  will  or  ma}r  result  in  damage 
to  him.  The  court  shall  cause  such  application  to  be  entered 
of  record,  and  a  copy  of  it  shall  be  served  personally  upon  every 
person  interested  therein,  together  with  a  written  notice  that  on 
a  day  therein  stated,  which  shall  not  be  less  than  sixty  days  after 
such  service,  said  application  will  be  heard;  and  if,  upon  such 
hearinsf,  the  court  is  satisfied  that  the  statements  contained  in 
the  application  are  true,  it  shall  make  and  cause  to  be  entered 
of  record  an  order  reciting  the  substance  and  effect  of  said  lost 
or  destroyed  record.  Said  order  shall  have  the  same  effect,  so 
far  as  concerns  the  party  or  person  making  such  application  and 
the  persons  served  as  above  provided,  but  subject  to  intervening- 
rights,  which  the  original  record  would  have  had,  if  the  same 
had  not  been  lost  or  destroyed."  16  "  When  any  cause  has  been 
removed  to  the  supreme  court,  and  the  original  record  thereof 
is  afterward  lost,  a  duly  certified  copy  of  the  record  remaining 
in  said  court  may  be  filed  in  the  court  from  which  the  cause  was 
removed,  on  motion  of  an}'  party  or  person  claiming  to  be  inter- 
ested therein ;  and  the  copy  so  filed  shall  have  the  same  effect  as 
the  original  record  would  have  had  if  the  same  had  not  been  lost 
or  destroyed."  17  "  In  any  proceedings  in  conformity  with  law  to 
restore  the  records  of  any  court  of  the  United  States  which  have 
been  or  may  be  hereafter  lost  or  destroyed,  the  notice  required  may 
be  served  on  any  non-resident  of  the  district  in  which  such  court 

is  U.  S.  R.  S.  §  899 ;   Cornett   v.  Wil-        »«  U.  S.  R.  S.  §  <.m. 
liams,  20  Wall.  226.  "  U.  S.  R.  S.  §  901. 


§  268.]  ADMISSION    OF   DOCUMENTAEY    EVIDENCE.  403 

is  held  any  where  within  the  jurisdiction  of  the  United  States,  or 
in  any  foreign  country;  the  proof  of  service  of  such  notice,  if 
made  in  a  foreign  country,  to  be  certified  by  a  minister  or  consul 
of  the  United  States  in  such  country,  under  his  official  seal."  18 
"  A  certified  copy  of  the  official  return,  or  any  other  official 
paper  of  the  United  States  attorney,  marshal,  or  clerk,  or  other 
certifying  or  recording  officer  of  any  court  of  the  United  States, 
made  in  pursuance  of  la*w,  and  on  file  in  any  department  of  the 
government,  relating  to  any  cause  or  matter  to  which  the  United 
States  was  a  party  in  any  such  court,  the  record  of  which  has 
been  or  may  be  lost  or  destroyed,  may  be  filed  in  the  court  to 
which  it  appertains,  and  shall  have  the  same  force  and  effect  as 
if  it  were  an  original  report,  return  paper,  or  other  document 
made  to  or  filed  in  such  court;  and  in  any  case  in  which  the 
names  of  the  parties  and  the  date  and  amount  of  judgment  or 
decree  shall  appear  from  such  return  paper,  or  document,  it 
shall  be  lawful  for  the  court  in  which  they  are  filed  to  issue  the 
proper  process  to  enforce  such  decree  or  judgment,  in  the  same 
manner  as  if  the  original  record  remained  in  said  court.  And  in 
all  cases  where  any  of  the  files,  papers,  or  records  of  any  court 
of  the  United  States  have  been  or  shall  be  lost  or  destroyed,  the 
files,  records,  and  papers  which,  pursuant  to  law,  may  have  been 
or  may  be  restored  or  supplied  in  place  of  such  records,  files, 
and  papers,  shall  have  the  same  force  and  effect  to  all  intents  and 
purposes,  as  the  originals  thereof  would  have  been  entitled  to."  19 
"  That  whenever  any  of  the  records  or  files  in  which  the  United 
States  are  interested  of  any  court  of  the  United  States  have  been 
or  may  be  lost  or  destroyed,  it  shall  be  the  duty  of  the  attorney  of 
the  United  States  for  the  district  or  court  to  which  such  files  and 
records  belong,  so  far  as  the  judges  of  such  courts  respectively 
shall  deem  it  essential  to  the  interests  of  the  United  States  that 
such  records  and  files  be  restored  or  supplied,  to  take  such 
steps,  under  the  direction  of  said  judges,  as  may  be  necessary  to 
effect  such  restoration  or  substitution,  including  such  dockets, 
indices,  and  other  books  and  papers  as  said  judges  shall  think 
proper.  Said  judges  may  direct  the  performance,  by  clerks  of  said 
courts  respectively  and  by  the  United  States  attorneys,  of  any 

18  U.  S.  R.  S.  §  902,  as  amended  by  Act  19  U.  S.  R.  S.  §  903,  as  amended  by  Act 
of  Jan.  31,  1879,  ch.  xxxix,  §  1  (20  St.  at  of  Jan.  31,  1879,  ch.  xxxix,  §  2  (20  St.  at 
L.  277).  1*277). 


404  EVIDENCE    AT   LAW   AND   IN   EQUITY.  [CHAP.  XIX. 

duties  incident  thereto  ;  and  said  clerks  and  attorneys  shall  be 
allowed  such  compensation  for  services  in  the  matter  and  for 
lawful  disbursements  as  may  be  approved  by  the  attorney-gen- 
eral of  the  United  States,  upon  a  certificate  by  the  judges  of 
said  courts  stating  that  such  claim  for  services  and  disbursements 
is  just  and  reasonable ;  and  the  sum  so  allowed  shall  be  paid  out 
of  the  judiciary  fund."  20  "  The  acts  of  the  legislature  of  any 
state  or  territory,  or  of  any  country  subject  to  the  jurisdiction 
of  the  United  States,  shall  be  authenticated  b}r  having  the  seals  of 
such  state,  territory  or  country  affixed  thereto.  The  records 
and  judicial  proceedings  of  the  courts  of  any  state  or  territory, 
or  of  any  such  country  shall  be  proved  or  admitted  in  any  other 
court  within  the  United  States,  by  the  attestation  of  the  clerk, 
and  the  seal  of  the  court  annexed,  if  there  be  a  seal,  together 
with  a  certificate  of  the  judge,  chief-justice,  or  presiding  magis- 
trate, that  the  said  attestation  is  in  due  form.  And  the  said  rec- 
ords and  judicial  proceedings,  so  authenticated,  shall  have  such 
faith  and  credit  given  to  them  in  every  court  within  the  United 
States  as  they  have  by  law  or  usage  in  the  courts  of  the  state 
from  which  they  are  taken."21  "All  records  and  exemplifications 
of  books,  which  may  be  kept  in  amT  public  office  of  any  state  or 
territory,  or  of  any  country  subject  to  the  jurisdiction  of  the 
United  States,  not  appertaining  to  a  court,  shall  be  proved  or  ad- 
mitted in  any  court  or  office  in  any  other  state  or  territory,  or  in 
any  such  country,  by  the  attestation  of  the  keeper  of  the  said 
records  or  books,  and  the  seal  of  his  office  annexed,  if  there  be  a 
seal,  together  with  a  certificate  of  the  presiding  justice  of  the  court 
of  the  county,  parish,  or  district  in  which  such  office  ma}T  be  kept, 
or  of  the  governor,  or  secretary  of  state,  the  chancellor  or 
keeper  of  the  great  seal,  of  the  state,  or  territory,  or  country, 
that  the  said  attestation  is  in  due  form,  and  by  the  proper  officers. 
If  the  said  certificate  is  given  by  the  presiding  justice  of  a  court, 
it  shall  be  further  authenticated  by  the  clerk  or  prothonotary  of 
the  said  court,  who  shall  certify,  under  his  hand  and  the  seal 
of  his  office,  that  the  said  presiding  justice  is  duly  commissioned 
and  qualified ;  or,  if  given  by  such  governor,  secretary,  chancel- 

20  TJ.  S.  R.  S.  §  904,  as  amended  by  Act  utes  are  very  numerous,  and  may  be 
of  Jan.  31,  1879,  ch.  xxxix,  §  3  (20  St  at  found  collected  in  Greenleaf  on  Evidence, 
L.  278).  §§504-506;  Bump's  Federal  Procedure, 

21  U.  S.  R.  S.  §  905.     The  cases  con-  5G5-617. 
struingr  this  section  of  the  Revised  St;it- 


§  268.]  ADMISSION    OF   DOCUMENTARY   EVIDENCE.  405 

lor,  or  keeper  of  the  great  seal,  it  shall  be  under  the  great  seal 
of  the  state,  territory,  or  country  aforesaid  in  which  it  is  made. 
And  the  said  records  and  exemplifications,  so  authenticated,  shall 
have  such  faith  and  credit  given  to  them  in  every  court  and  office 
within  the  United  States  as  they  have  by  law  or  usage  in  the 
courts  or  offices  of  the  state,  territory,  or  country,  as  aforesaid, 
from  which  they  are  taken."22  "It  shall  be  lawful  for  any 
keeper  or  person  having  the  custody  of  laws,  judgments,  orders, 
decrees,  journals,  correspondence,  or  other  public  documents  of 
any  foreign  government  or  its  agents,  relating  to  the  title  to 
lands  claimed  by  or  under  the  United  States,  on  the  applica- 
tion of  the  head  of  one  of  the  departments,  the  solicitor  of  the 
treasury,  or  the  commissioner  of  the  general  land  office,  to 
authenticate  copies  thereof  under  his  hand  and  seal,  and  to 
certify  them  to  be  correct  and  true  copies  of  such  laws,  judg- 
ments, orders,  decrees,  journals,  correspondence,  or  other  public 
documents,  respectively ;  and  when  such  copies  are  certified  by 
an  American  minister  or  consul,  under  his  hand  and  seal  of  office, 
to  be  true  copies  of  the  originals,  they  shall  be  sealed  up  by  him 
and  returned  to  the  solicitor  of  the  treasury,  who  shall  file  them 
in  his  office,  and  cause  them  to  be  recorded  in  a  book  kept  for 
that  purpose.  A  copy  of  any  such  law,  judgment,  order,  decree, 
journal,  correspondence,  or  other  public  document,  so  filed,  or  of 
the  same  so  recorded  in  said  book,  may  be  read  in  evidence  in 
any  court,  where  the  title  to  land  claimed  under  or  by  the  United 
States  may  come  into  question,  equally  with  the  originals."23 
"The  edition  of  the  laws  and  treaties  of  the  United  States,  pub- 
lished by  Little  &  Brown,  shall  be  competent  evidence,  of  the 
several  public  and  private  acts  of  congress,  and  of  the  several 
treaties  therein  contained,  in  all  the  courts  of  law  and  equity  and 
of  maritime  jurisdiction,  and  in  all  the  tribunals  and  public  offices 
of  the  United  States,  and  of  the  several  states,  without  any  fur- 
ther proof  or  authentication  thereof."24  "  In  suits  or  informations 
brought,  where  any  seizure  is  made  pursuant  to  an  act  providing 

22  U.  S.  R.  S.  §  906.     See  also  Snyder  cited  in  Bump's  Federal  Procedure,  G17- 

v.  Wise,  10  Pa.  St.  157  ;  Lawrence  v.  Gault-  619. 

ney,  Cheves  Law  (S.  C),  7  ;  King  v.  Dale,  23  U.  S.  R.  S.  §  907. 

2  111.  513 ;  Henthorn  v.  Doe,  1  Blackford  24  U.  S.  R.  S.  §  908.     See  also  act  of 

(Ind.),  157  ;  Russell  v.  Kearney, 27  Ga  96;  June  20,  1874,  ch.  333,  §  8  (18  St.  at  L. 

Paca  t\  Dutton,  4  Mo.  371 ;  Karr  v.  Jack-  114)  ;  Act  of  June  7,  1880,  Res.  44  (21 

son,  28  Mo.  316  ;  Grant  v.   Henry  Clay  St.  at  L.  308). 
Coal  Co.,  80  Pa.  St.  208  ;  and  authorities 


406  EVIDENCE   AT   LAW   AND   IN   EQUITY.  [CHAP.  XIX. 

for  or  regulating  the  collection  of  duties  on  imports  or  tonnage, 
if  the  property  is  claimed  by  any  person,  the  burden  of  proof 
shall  lie  upon  such  claimant:  provided,  that  probable  cause  is 
shown  for  such  prosecution,  to  be  judged  of  by  the  court."25 

§  269.  Definition  and  Use  of  an  Affidavit.  —  An  affidavit  is  a 
declaration  upon  oath  or  affirmation  before  some  persons  having 
competent  and  lawful  power  and  authority  to  administer  the 
same.  Affidavits  are  used  in  a  suit  in  equity  in  three  ways. 
In  certain  cases  they  must  be  annexed  to  a  bill  before  it  can  be 
properly  filed ; 1  certain  documents  may  be  proved  by  them  at 
the  hearing ; 2  and  they  are  used  in  support  of  interlocutory  ap- 
plications.3 The  manner  of  their  use  has  been  already  described. 
It  is  unsettled  whether  the  court  has  power  to  compel  any  one 
to  have  his  affidavit  taken,4  or  to  cross-examine  an  affiant,5  ex- 
cept, possibty,  by  means  of  a  feigned  issue. 

§  270.  Manner  of  Verifying  an  Affidavit.  —  An  affidavit  must 
be  sworn  to ;  unless  the  affiant  is  conscientiously  scrupulous  of 
taking  an  oath,  when  he  may,  in  lieu  thereof,  make  solemn  affir- 
mation of  the  truth  of  the  facts  stated  by  him.1  If  the  deponent 
be  blind  or  unable  to  read,  the  affidavit  must  be  read  over  to  him 
by  the  officer  before  whom  he  swears  to  its  truth.2  An  affidavit, 
if  made  within  the  United  States,  must  be  verified  before  a 
judge  of  the  court  in  which  it  is  to  be  used,  or  a  United  States 
commissioner,  or  a  notary  public.3  If  made  without  the  United 
States,  it  may  be  verified  before  any  secretary  of  legation  or  con- 
sular officer  within  the  limits  of  his  legation,  consulate,  or  com- 
mercial agency  ; 4  or,  perhaps,  before  any  person  who,  by  the  laws 
of  the  country  in  which  the  affidavit  is  made,  is  authorized  to 
administer  an  oath  or  affirmation.5 

25  U.  S.  R.  S.  §  909.    See  also  Locke  v.  Boston  Belting  Co.,  6  Law  Rep.  (n.  s.) 

United  States,  7  Cranch,  339 ;  The  Lu-  329. 

minary,  8  Wheat.  407;  Wood  v.  United  5  See  Day  v.  Boston  Belting  Co.,  6  Law 

States,  16  Pet.  342  ;  The  John  Griffin,  15  Rep.  (n.  s.)  329;  Hammerschlag  Manuf. 

Wall.   29 ;    Clifton  ?;.   United   States,  4  Co.  v.  Judd,  20  Fed.  R.  292. 
How.  242;   Taylor  v.   United   States,   3         §270.  i  Rule  91 ;  U.  S.R.  S.  §§  1,5013. 
How.  197;   Buckley  v.  United   States,  4  2  Matter  of  Christie,  5  Paige  (N.Y.), 

How.  251;  Cliquot's  Champagne,  3  Wall.  242. 
114.  3  U.  S.  R.  S.  §§  725,  945;  L.  1876,  ch. 

§  269.   i  See  §  87.  304;  U.  S.  R.  S.  1st  Supp.  251  (19  U.  S. 

2  gee  §  269.  St.  at  L.  206) ;   Haight  v.  Morris  Aque- 

«  See  Chapter  XV.  duct,  4  Wash.  C.  C.  601. 

4  See  Hammerschlag  Manufacturing  4  U.  S.  R.  S.  §1750. 

Co.  v.  Judd,  26  Fed.  R.  292  ;  Bacon  v.  5  Pinkerton    v.   The  Barnsley   Canal 

Magee,  7  Cowen  (N.  Y.),  515;  Day  v.  Co.,  3  Y.  &  J.  277  n. 


§  272.]  FORM    OF   AN   AFFIDAVIT.  407 

§  271.  Title  of  an  Affidavit.  —  An  affidavit  should  be  correctly 
entitled  in  the  cause  or  matter  in  which  it  is  made.1  For,  other- 
wise, it  is  said  that  the  affiant  cannot  be  convicted  of  perjury 
if  his  statements  are  false.2  But,  it  seems  that,  if  there  are  sev- 
eral parties  on  either  side,  or  both  sides,  it  will  be  sufficient  to 
entitle  it  in  the  name  of  a  single  plaintiff  and  defendant,  and 
after  each  to  insert  the  word  "  others  "  or  "  another,"  according 
to  the  circumstances  of  the  case.3  The  omission  of  a  party's 
christian  name  will  not  be  a  fatal  defect.4  If  the  affidavit  is 
correctly  entitled  when  made,  it  can  still  be  used  after  the  title 
of  the  cause  has  been  subsequently  changed.5  If  an  affidavit  of 
service  be  attached  to  papers  which  are,  themselves,  correctly 
entitled,  it  needs  no  separate  title.6  An  affidavit  made  or  entitled 
in  one  cause  cannot,  it  has  been  held,  be  used  in  another  : 7  un- 
less, perhaps,  when  the  affiant  is  dead,  insane,  imbecile,  or  beyond 
the  jurisdiction  of  the  court. 

§  272.  Form  of  an  Affidavit.  —  Every  affidavit  should  begin  with 
the  venire,  —  that  is,  the  name  of  the  county  ; 1  and  if  sworn  to 
elsewhere  than  in  that  where  the  court  is  held,  with  the  name  of 
the  State  where  it  is  taken ;  which  is  usually  followed  by  the  ab- 
breviation Ss.  for  scilicet,  or  the  English  words  to  wit.  Otherwise, 
it  has  been  held,  though  not  by  a  Federal  court,  that  it  may  be 
disregarded  as  a  nullity,  even  though  the  residence  of  the  officer 
before  whom  it  is  sworn  appear  in  the  jurat.2  The  English  rule 
was  that  in  all  affidavits  the  true  place  of  residence,  description, 
and  addition  of  every  person  swearing  to  the  same  must  be  in- 
serted ;  unless  the  affidavits  were  made  by  parties  in  the  cause, 
who  may  describe  themselves,  in  the  affidavit,  as  the  above-named 
plaintiff,  or  defendant,  without  specifying  any  residence,  or  ad- 
dition, or  other  description.3     This  rule,  however,  is  not  always 

§  271.   !  Hawley  v.  Donnelly,  8  Paige  Selye,   3  Denio    (N.  Y.),   54  ;    Stacy  v. 

(N.  Y.),  415 ;  Stafford  v.  Brown,  4  Paige  Farnham,  2   How.  Pr.  (N.  Y.)  2G.     But 

(N.  Y.),  360.   But  see  Bowman  v.  Sheldon,  see  Barnard  v.  Heydrick,  49  Barb.  (N.  Y.) 

5  Sand.  (N.  Y.)  657.  62,  72  ;  s.  c.  2  Abbott's  Pr.  n.  s.  (N.  Y.) 

2  Hawley  v.  Donnelly,  8  Paige  (N.  Y.),  47  ;  Langston  v.  Wetherell,  14  Mees.  &  VV. 

415.  104. 

8  White  v.  Hess,  8  Paige  (N.  Y.),  544.  §  272.   *  Belden  v.  Devoe,  12  Wendell 

4  Maury  v.  Van  Arnum,  1  Hill  (N.  Y.),  (N.  Y.),  223. 

370.  2  Cook  v.  Staats,  18  Barb.  (N.  Y.)  407 ; 

5  Ilawes  v.  Bamford,  9  Simons,  653.  Lane  v.  Morse,  6  How.  Pr.   (N.  Y.)   394. 

6  Anon.,  4  Hill  (N.  Y.),  597.  But   see  Mosher  v.  Heydrick.  45  Barb. 

7  Lumbrozo  v.  White,  1  Dickens,  (N.  Y.)  549;  8.  C.  30  How.  Pr.  (N.  Y.)  161. 
150;  Daniell's  Ch.  Pr.  1774;  Milliken  v.  3  Daniell's  Ch.  Pr.  (2d  Am.  cd.)  1775. 


408  EVIDENCE   AT   LAW   AND    IN   EQUITY.  [CHAP.  XIX. 

adhered  to  or  insisted  upon  by  practitioners  in  the  courts  of  the 
United  States.  The  English  rule  was  that  the  stating  part  of 
the  affidavit  must  be  preceded  by  the  statement  that  the  deponent 
was  duly  sworn.4  The  affidavit  should  state  "sufficient  to  sus- 
tain the  case  made  by  the  motion  or  petition  of  which  it  is  the 
groundwork."5  Its  statements  must  be  made  with  sufficient  cer- 
tainty, and  with  all  necessary  circumstances  of  time,  place,  manner, 
and  other  material  incidents.6  When,  however,  the  affiant  de- 
poses to  words  spoken,  the  addition  "  or  to  that  effect  "  is  not 
improper."  Special  fulness  is  required  of  affidavits  of  service.8 
An  affidavit  should  state  facts  and  not  conclusions  of  law  ; 9  and 
must  be  pertinent,  material,  and  not  scandalous.10  The  court 
may,  upon  examination  of  the  paper,  order  such  matter  expunged 
with  costs  to  be  paid  by  the  party  or  solicitor  seeking  to  use  the 
same  ; n  or  a  reference  may  be  ordered  to  determine  whether 
the  statements  in  it  are  proper.12  A  reference  can  only  be  de- 
manded upon  exceptions  in  writing  similar  to  those  to  a  plead- 
ing ; 13  and  the  filing  or  reading  of  affidavits  in  opposition  to 
such  parts  of  his  opponent's  affidavits  as  are  excepted  to  may 
be  construed  as  a  waiver  of  the  exceptions.14  Pending  a  refer- 
ence concerning  it,  an  affidavit  cannot  be  used  except  by  leave 
of  the  court,  which  is  usually  granted  only  upon  terms.15 

§  273.  Execution  of  an  Affidavit.  —  It  is  usual,  though  it  Seems 
not  indispensable,  for  the  affiant  to  subscribe  his  christian  name 
and  surname  at  the  foot  of  the  affidavit.1  In  England  the  signature 
had  to  be  on  the  left  side  of  the  page  ; 2  but  in  this  country  it  is 
usually  at  the  right.  In  one  case  where  a  marksman  had  signed 
with  his  name  at  length,  his  hand  having  been  guided  for  that 

See   also   Hinde's  Pr.   451 ;    Crockett  v.  ™  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1777. 

Bishton,  2  Madd.  446.  See  §  68. 

4  Phillips  v.  Prentice,  2  Hare,  542;  13  Daniell's  Ch  Pr.  (2d  Am.  ed.)  1777. 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1776.  See  §  68. 

5  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1776;  14  Bijkford  v.  Skewes,  8  Simons,  206; 
Hinde's  Pr.  451 ;   Van  Wyck  v.  Reid,  10  Daniell's  Ch.  Pr.  1777. 

How.  Pr.  (N.  Y.)  366.  15  Pearse  v.  Brook,  3  Beav.  337;  Dan- 

6  Sea.  Insurance   Co.    v.    Stebbins,   8    iell's  Ch.  Pr.  1777. 

Paige  (N.  Y.),  565;   Meach  v.  Chappell,  §273.    1   Haff    v.    Spicer,    3    Caines 

8  Paige  (N.  Y.),  135.  (N.  Y.)  190  ;   Jackson  ex  dem.  Kenyon  v. 

7  Ayliffe  v.  Murray,  2  Atk.  58,  60.  Virgil,  3  J.  R.  (X.  Y.)  540 ;  Soule  v.  Chase, 

8  Hinde's  Pr.  453.  1  Robertson  (N.  Y.),  222.    But  see  Laim- 

9  Powell  v.  Kane,  5  Paige  (N.  Y.),265.  beer  v.  Allen.  2  Sand.  (N.  Y.)  648. 

10  Powell  v.  Kane,  5  Paige  (N.Y  ),  265.  2  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1778. 

11  Powell  v.  Kane,  5  Paige  (N.  Y.)  265; 
Ex  parte  Smith,  1  Atk.  139. 


§  274.]  COMPETENCY    OF    WITNESSES.  409 

purpose,  the  affidavit  was  ordered  taken  off  the  file.3  The  jurat, 
which  is  indispensable,  is  placed  upon  the  opposite  side  from  the 
signature.  It  is  usually  in  substantially  the  following  form : 
"  Sworn  to  before  me  this  day  of  ,  18     ."     If  the 

affiant  be  blind  or  a  marksman,  the  jurat  should  be  in  substance 
thus  :  "  Sworn,  &c,  the  whole  of  the  above  affidavit  having  been 
first  read  over  and  explained  to  the  said  A.  B.,  who  appeared 
perfectly  to  understand  the  same,  he  made  his  mark  in  my  pres- 
ence." 4  If  the  affiant  have  been  previously  found  by  the  inquisi- 
tion of  a  jury  to  be  an  idiot,  a  lunatic,  or  imbecile,  the  officer 
before  whom  the  affidavit  is  sworn  should  state  in  the  jurat  that 
he  has  examined  the  deponent  for  the  purpose  of  ascertaining  the 
state  of  his  mind,  and  that  the  latter  was  apparently  of  sound 
mind  and  capable  of  understanding  the  nature  and  contents  of 
the  affidavit.5  The  omission  of  the  addition  to  the  officer's  signa- 
ture of  his  title,6  and  even  the  omission  of  his  signature,  will  not, 
it  seems,  be  a  fatal  defect.7  It  is  usual  and  more  prudent,  even 
if  not  absolutely  essential,  for  the  officer  to  mark  with  his  initials 
all  interlineations  and  erasures  in  the  body  of  the  affidavit.8 

§  274.  Competency  of  Witnesses.  —  The  testimony  of  witnesses 
may  be  taken  either  solely  for  use  in  the  court  taking  the  same, 
or  for  use  in  other  courts  as  well.  The  same  rules  as  to  compe- 
tency prevail  at  law  and  in  equity.1  The  Revised  Statutes  pro- 
vide that,  "  in  the  courts  of  the  United  States,  no  witness  shall 
be  excluded  in  any  action  on  account  of  color,  or  in  any  civil 
action  because  he  is  a  party  or  interested  in  the  issue  tried : 
provided,  that  in  actions  by  or  against  executors,  administra- 
tors, or  guardians,  in  which  judgment  may  be  rendered  for  or 
against  them,  neither  party  shall  be  allowed  to  testify  against  the 
other,  as  to  any  transaction  with,  or  statement  by,  the  testator, 
intestate,  or  ward,  unless  called  to  testify  thereto  by  the  oppo- 
site party,  or  required  to  testify  thereto  by  the  court.  In  all 
other  respects,  the  laws  of  the  state  in  which  the  court  is  held 
shall  be  the  rules  of  decision  as  to  the  competency  of  witnesses 

8  v.  Christopher,  11  Simons,  400.         »  Chase  v.  Edwards,  2  Wend.  (N.  Y.) 

*  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1776;  283. 
Matter  of  Christie,  5  Paige  (N.  Y.),242.  8  Daniell's  Ch.  Pr.  (2d  Am   ed.)  1777  ; 

5  Matter  of  Christie,  5  Paige  (N.  Y.),  Didier  v.  Warner,  1  Code  R.  (N.  Y.)  42. 
242.  §  274.   1  Cornett  v.  Williams,  20  Wall. 

8  Hunter  v.  Le  Conte,  6  Cowen  (N.  Y.),  226. 
728  ;  People  v.  Rensselaer  Common  Pleas, 
6  Wend.  (N.Y.)  643. 


410  EVIDENCE   AT   LAW   AND   IN   EQUITY.  [CHAP.  XIX. 

in  the  courts  of  the  United  States  in  trials  at  common  law,  and 
in  equity  and  admiralty."2  This  section  has  been  said  to  be 
remedial,  and  to  deserve,  therefore,  a  liberal  construction.3  It 
applies  as  well  to  causes  to  which  the  United  States  is  a  party 
as  to  those  between  private  persons ; 4  it  allows  a  party  to  testify 
in  his  own  behalf,  as  well  as  when  called  upon  by  the  other  ;  5  and 
it  does  not  prevent  a  person  not  a  party,  but  interested  in  the 
result  of  a  suit,  from  testifying  against  an  executor  in  a  case 
when,  if  a  party,  he  could  not  do  so.6  It  does  not  allow  a  wife 
to  testify  in  behalf  of,  or  against,  her  husband,  unless  the  laws  of 
the  State  permit  her  so  to  do.7  For  her  incompetency  by  the 
common  law  was  due  not  to  interest,  but  to  grounds  of  public 
policy.8  The  cases  where  the  court  will  require  a  party  to  tes- 
tify, when  otherwise  he  would  not  be  obliged  or  allowed  so  to 
do,  are  rare.  The  court  will  usually  only  do  so  upon  its  own 
motion,  and  if  upon  his  suggestion,  only  after  hearing  the  other 
party,  if  the  latter  object.9  The  court  will  do  so,  however, 
when  a  party  has  died  after  his  testimony  has  been  taken  and 
before  trial,  and  his  administrator  insists  upon  reading  or  sub- 
mitting his  testimony  at  the  hearing.10  The  court  will,  it  seems, 
not  require  such  testimony  to  be  taken,  if  by  so  doing  it  would 
adopt  a  rule  of  decision  for  a  Federal  court  different  from  that 
prescribed  by  the  legislature  for  courts  of  the  State  wherein  it  is 
held.11  If  there  are  several  defendants,  one  of  whom  has  a  similar 
interest  in  the  result  to  that  of  the  complainant,  he  cannot,  by 
requiring  the  latter  to  testify,  obviate  the  effect  of  the  proviso  in 
this  statute.12  It  seems  that  the  admissions  of  a  party  are  com- 
petent evidence  against  him,  even  though,  upon  his  cross-exami- 
nation, when  testifying  in  his  own  behalf,  he  was  not  asked  if  he 
made  them.13  It  has  been  held,  in  actions  at  common  law,  that 
the  testimony  of  a  physician  as  to  information  acquired  while 
attending  a  patient  in  a  professional  capacity,  when  forbidden  by 
the  statutes  of  the  State,  should  not  be  admitted  in  the  Federal 

2  U.  S.  R.  S.  §  858 ;  James  v.  Atlan-         6  Potter  v.  Third  National  Bank,  13 
tic  Delaine  Co.,  3  Cliff.  614.  Chic.  L.  N.  102. 

3  Texas  v.  Chiles,  21  Wall.  488.  7  Lucas  v.  Brooks,  18  Wall.  436. 
*  Green  v.  United  States,  9  Wall.  655.         8  Lucas  v.  Brooks,  18  Wall.  436. 

Contra,  Jones  v.  United  States,  1  Ct.  CI.  9  Eslava  v.  Mazange,  1  Woods,  623. 

383.  10  Mumm  v.  Owens,  2  Dill.  475. 

5  Texas  v.  Chiles,   21  Wallace,  488  ;         u  Robinson  v.  Mandell,  3  Cliff.  169. 

Railroad    Co.  v.    Pollard,    22   Wallace,         12  Eslava  v.  Mazange,  1  Woods,  623. 
341.  13  The  Stranger,  1  Brown's  Adm.  281. 


§  275.]  SUBPOENAS   AD    TESTIFICANDUM.  411 

court  there  held ; 14  that  when  a  State  statute  authorized  the 
admissibility  in  evidence  of  a  notarial  certificate  of  a  form 
inadmissible  at  common  law,15  or  of  the  endorsement  of  negoti- 
able paper  without  proof  of  handwriting,16  the  Federal  court 
there  held  should  follow  such  statutes ;  but  that  a  State  statute 
excluding  the  testimony  of  a  witness  on  account  of  his  interest 
in  the  controversy  should  be  disregarded.17 

§  275.  Subpoenas  ad  Testificandum.  —  The  attendance  of  a  wit- 
ness is  usually  compelled  in  equity  as  in  law  by  the  service  of  a 
subpoena  ad  testificandum,  and  the  payment  of  his  fees  and  mile- 
age.1 A  subpoena  ad  testificandum  is  substantially  in  the  same 
form  in  equity  as  in  law.  When  issued  from  a  court  of  the 
United  States,  it  must  be  under  the  seal  of  the  court,  and  signed 
by  the  clerk ;  and  is  usually  also  signed  by  the  solicitors  of  the 
party  at  whose  request  it  issues.  Those  issued  from  the  Supreme 
Court  or  a  Circuit  Court  must  bear  teste  from  the  day  of  such 
issue  of  the  Chief  Justice  of  the  United  States,  or,  when  that 
office  is  vacant,  of  the  associate  justice  next  in  precedence.2 
Those  issuing  from  a  District  Court  must  bear  teste  of  the  judge, 
or  when  that  office  is  vacant,  of  the  clerk  thereof.3  By  the  com- 
mon law,  the  names  of  but  three  witnesses  could  be  included  in 
one  subpoena.4  The  Revised  Statutes,  however,  provide  that,  "  to 
save  unnecessary  expense,  it  shall  be  the  duty  of  the  clerk  to 
insert  the  names  of  as  many  witnesses  in  a  cause  in  such  sub- 
poena as  convenience  in  serving  the  same  may  require."5  If 
the  witness  can  be  served  within  the  jurisdiction  of  the  court 
where  the  suit  is  pending,  or  within  a  hundred  miles  of  the  place 
of  holding  that  court,  the  subpoena  may  be  issued  from  its  clerk's 
office.6  If  he  cannot,  and  it  is  desired  to  take  his  testimony  de 
bene  esse  under  the  acts  of  Congress,7  application  for  the  issue 
of  the  subpoena  must  be  made  to  the  court  of  the  district  in 
which  the  examination  is  to  be  made.8 

14  Conn.  Mutual  Life  Ins.  Co.  v.  Union  *  Erwin  v.  United  States,  37  Fed.  R. 
Trust  Co.,  112  U.  S.  250.  470,  490. 

15  Sims  v.  Hundley,  G  How.  1.  5  U.  S.  R.  S.  §  829.     Erwin  v.  United 
i°  McNiel  t>.  Holbrook,  12  Pet.  84.             States,  37  Fed.  R.  470,  490. 

«  Potter  v.  National  Bank,  102  U.  S.  6  U.  S.  R.  S.  §  870. 

103  ;   Goodwin  v.  Fox,  129   U.   S.    G01,  7  See  §§  286-287. 

631.  8  U.  S.  R.  S.  §  863;    United  States  v. 

§275.   >  For  the  amount  of  his  fees  Tilden,  25  Internal  Rev   R.352;  Ex  parte 

and  mileage,  see  §  333.  Humphrey,   2    Blatchf.   228  ;    Henry    v. 

2  U.S.  R.  S.  §§  911,  912.  Ricketts,  1  Cranch  C.  C.   580;  Ex  parte 

»  U.  S.  R.  S.  §§  911,  912.  Elisha  Peck,  3  Blatchf.  113. 


412  EVIDENCE   AT   LAW    AND   IN   EQUITY.  [CHAP.  XIX. 

§  276.  Service  of  a  Subpoena  ad  testificandum.  —  A  subpoena 
to  appear  and  testify  may  be  served  by  the  marshal  of  the  court, 
or  by  any  other  person  acting  as  the  agent  of  the  party  calling 
the  witness.1  The  Revised  Statutes  provide  that  "  subpoenas  for 
witnesses  who  are  required  to  attend  a  court  of  the  United  States, 
in  any  district,  may  run  into  any  other  district :  provided,  That 
in  civil  causes  the  witnesses  living  out  of  the  district  in  which 
the  court  is  held  do  not  live  at  a  greater  distance  than  one  hun- 
dred miles  from  the  place  of  holding  the  same."2  A  witness' 
attendance  at  a  court  more  than  one  hundred  miles  from  the 
place  where  he  lives  cannot  be  compelled  by  the  service  of  a 
subpoena  upon  him  within  the  district,  when  he  has  been  enticed 
there  by  false  pretences ; 3  or  while  there  to  attend  either  as  a 
party,  a  witness,  an  attorney,  or  a  counsel  during  a  suit  or  other 
judicial  proceeding  in  a  State4  or  Federal  court  ;5  or,  while  travel- 
ling upon  his  way  to  or  from  Congress,  if  he  be  a  member  thereof;6 
or  if  there  in  the  course  of  the  performance  of  any  public  duty.7 
The  courts  of  the  United  States  have  no  power  to  compel  the 
attendance  of  persons  to  an  examination  in  a  foreign  country. 
Such  testimon}*,  therefore,  can  only  be  taken  against  the  will  of 
a  witness  by  the  aid  of,  and  by  means  of,  the  remedies  adminis- 
tered by  a  foreign  court.8 

§  277.  Compelling  a  "Witness  to  testify.  —  When  a  witness,  who 
has  been  properly  served  with  a  subpoena,  refuses  to  attend,  or 
when  upon  his  examination  he  refuses  to  answer  a  relevant  and 
proper  question,  against  answering  which  he  is  not  protected  by 
his  privilege,  by  the  old  rules  he  was  liable  "  to  be  proceeded 
against  in  three  ways :  first,  by  attachment  for  a  contempt  of  the 
process  of  the  court ;  secondly,  by  a  special  action  on  the  case 
for  damages  at  common  law  ;  and  thirdly,  by  action  on  the 
statute  5  Eliz.  c.  9,  §  12,  for  the  further  recompence  given  by 

§  276.   1  Schwabacker  v.  Reilly,  2  Dill.  4  Juneau   Bank  v.  M'Speda,  5  Biss. 

127  ;  Cummings  v.  The  Akron  Cement  &  64;  Matthews  v.  Tufts,  87  N.Y.  568.    But 

Plaster  Co.,   6    Blatchf .  509  ;    Miller   v.  see  Blight  v.  Fisher,  Pet.  C.  C.  41. 
Scott,    6    Phila.    (Pa.)    484;    Power    v.  5  Parker  v.  Hotchkiss,  1  Wall.  Jr.  269 ; 

Semmes,  1  Cranch  C.  C.  247.  Matthews  v.  Tufts,  87  N.  Y.  568.     Contra, 

2  U.  S.  R.  S  §  876 ;  Ex  parte  Beebees,  Blight  v.  Fisher,  Peters'  Circuit  Court 
2   Wall.  Jr.  127  ;    Henry    v.   Ricketts,  1  Reports,  41. 

Cranch  C.  C.  580;  United  States  v.  WTil-         6  Constitution   Art.  I.  §  6 ;   Miner  v. 

liams,  4  Cranch  C.  C.  372.  Markham,  28  Fed.  R.  387. 

3  Union  Sugar  Refinery  Co.  v.  Mathies-  7  See  §98. 
son,  2  Cliff.  304  ;  Steiger  v.  Bonn,  4  Fed.  8  §  290. 
R.  17. 


§  279.]  BILLS   TO   PERPETUATE   TESTIMONY.  413 

that  statute,  if  it  has  been  previously  assessed  by  the  court  out 
of  which  the  process  issued."1  In  the  Federal  courts  a  witness, 
if  contumacious,  may  be  punished  for  contempt,2  and  is  also  prob- 
ably liable  to  an  action  for  the  damages  sustained  by  his  refusal. 
Upon  an  application  to  punish  a  witness  for  refusing  to  answer 
a  question,  the  power  of  the  officer  before  whom  he  is  examined 
and  the  materiality  of  the  question  may  both  be  considered.3 
The  rules  concerning  the  privileges  of  witnesses  and  the  materi- 
ality and  relevancy  of  evidence,  are  substantially  the  same  in 
equity  as  at  law.4  Care  will  be  taken  not  to  compel  a  witness  to 
needlessly  disclose  his  business  secrets  5  and  private  papers.6 

§  278.  Testimony  taken  in  Equity  which  may  be  used  in  other 
Courts.  —  Testimony  may  be  taken  in  a  court  of  equity  for  use  in 
other  courts,  as  well  as  for  its  own  use,  by  bills  to  perpetuate 
testimony1  and  bills  to  take  testimony  de  bene  esse;2  and  formerly, 
at  least,  testimony  could  be  taken  in  a  court  of  equity  for  use  in 
another  court  by  a  bill  of  discovery.3 

§  279.  Bills  to  perpetuate  Testimony.  —  "  In  any  case  where  it 
is  necessary,  in  order  to  prevent  a  failure  or  delay  of  justice,  any 
circuit  court,  upon  application  to  it  as  a  court  of  equity,  may, 
according  to  the  usages  of  chancery,  direct  depositions  to  be 
taken  in  perpetuam  rei  memoriam,  if  they  relate  to  any  matters 
that  may  be  cognizable  in  any  court  of  the  United  States."  x  In 
order  to  obtain  such  a  direction,  the  party  wishing  the  testimony 
taken  should  file  a  bill  to  perpetuate  testimony.2  A  bill  to  per- 
petuate testimony  must  contain  all  the  facts  necessary  to  give  the 
court  jurisdiction.  It  must  state  with  reasonable  certainty  the 
subject-matter  touching  which  the  plaintiff  is  desirous  of  taking 
testimony,3  and  show  that  it  is  a  matter  which  may  be  cognizable 
in  a  court  of  the  United  States.4  It  should  also  show  that  the 
plaintiff  has  some  interest  in  the  subject-matter,  which  may  be 
endangered  if  the  testimony  in  support  of  it  is  lost.     A  mere 

§  277.   »  Tidd's  Pr.  738.  2  §  280. 

2  U.  S.  R.  S.  §  725.  8  §  281. 

8  Ex  parte  Peck,  3  Blatchf .  113  ;  Ex         §  279.    »  U.  S.  R.  S.  §  866. 

parte  Judson,  3  Blatclif.  89.  2  New  York  &  Baltimore  Coffee  Pol- 

4  Stevens  v.  Cooper,  1  J.  Ch.  (N.  Y.)  ishing  Co.  v.  New  York  Coffee  Polishing 
425.  Co.,  9  Fed.  R.  578. 

5  Robinson  v.  Phila.,  &c.  R.  R.  Co.,          3  Story 's  Eq.  PI.  §§300,305. 

28  Fed.  R.  340,  342.  *  U.  S.  It.  S.  §  868  ;  New  York  &  Bal- 

6  Henry  v.  Travelers'  Ins.  Co.,  35  Fed.  timore  Coffee  Polishing  Co.  v.  New  York 
R  15.  Coffee  Polishing  Co.,  9  Fed   R.  578.    But 

§  278.   !  §  279.  see  Morris  v.  Morris,  2  Phill.  205,  208. 


414  EVIDENCE   AT   LAW   AND    IN   EQUITY.  [CHAP.  XIX. 

expectancy,  however  strong  and  well-founded,  is  not  sufficient. 
It  has  been  said,  "  Put  the  case  as  high  as  possible  ;  that  the  party, 
seeking  to  perpetuate  the  testimony,  is  the  next  of  kin  of  a  luna- 
tic ;  that  the  lunatic  is  intestate  ;  that  he  is  in  the  most  helpless 
state,  a  moral  and  physical  impossibility,  (though  the  law  would 
not  so  regard  it,)  that  he  should  ever  recover ;  even  if  he  were  in 
articulo  mortis,  and  the  bill  was  filed  at  that  instant ;  still,  the 
plaintiff  could  not  qualify  himself  to  maintain  it,  as  having  any 
interest  in  the  subject  of  the  suit."  5  If,  however,  the  interest  be 
such  a  one  as  may  be  immediately  barred  by  the  party  against 
whom  the  bill  is  brought,  it  has  been  said  that  the  court  will 
withhold  its  assistance,  for  it  would  be  a  fruitless  exercise  of 
power.6  Such  a  bill  must  also  show  that  the  defendant  has,  or 
claims  to  have,  a  title  or  interest  in  opposition  to  that  of  the 
plaintiff  in  the  subject-matter  of  the  proposed  testimony,7  as,  for 
example,  that  the  defendant  claims  an  exclusive  right  to  the  use 
of  a  process  which  the  plaintiff  is  using,  and  rests  his  claim  upon 
letters-patent  which  the  proposed  testimony  will  show  to  be 
invalid ; 8  and  some  ground  of  necessity  for  perpetuating  the  evi- 
dence, as  that  the  facts,  to  which  the  testimony  of  the  witnesses 
proposed  to  be  examined  relate,  cannot  be  immediately  investi- 
gated in  a  court  of  law  or  equity,  —  or,  if  they  can  be  immediately 
investigated,  that  the  right  to  commence  such  a  suit  or  action 
belongs  exclusively  to  the  defendant;  or  that  the  defendant  has 
interposed  some  impediment,  such  as  an  injunction,  to  an  imme- 
diate trial  of  the  matter  in  a  court  of  law ;  or  that,  before  the 
investigation  can  take  place,  the  evidence  of  a  material  witness 
is  likely  to  be  lost  by  his  threatened  death,  illness,  or  departure 
from  the  jurisdiction  of  the  court : 9  but  the  fact  that,  in  the  case 
recently  cited,  the  attorney-general  might  institute  a  proceeding 
to  annul  a  patent,  will  not  prevent  the  granting  of  the  prayer  of 
the  bill.10  The  prayer  should  be  for  leave  to  examine  the  wit- 
nesses touching  the  matter  stated,  to  the  end  that  their  testi- 
mony may  be   preserved  and  perpetuated,  and  for  the  proper 

5  Dursley  v.  Fitzhardinge,  6  Ves.  260.     New    York  &   Baltimore  Coffee   Polish- 

6  Dursley  v.  Fitzhardinge,  6  Ves.  261-  ing  Co.  v.  New  York  Coffee  Polishing 
263.  Co.,  9  Fed.  R.  578  ;  Story's  Eq.  PI.  §  303  ; 

1  Story's  Eq.  PI.  §  302.  Daniell's  Ch.  Pr.  1572,  1573. 

8  New  York  &  Baltimore  Coffee  Pol-  10  New  York  &  Baltimore  Coffee  Pol- 
ishing Co  v.  New  York  Coffee  Polishing  ishing  Co.  v.  New  York  Coffee  Polishing 
Co.,  9  Fed.  R.  578.  Co.,  9  Fed.  R.  578. 

9  Angell  v.  Angell,  1  Sim.  &  S.   83 ; 


§  279.]  BILLS   TO   PERPETUATE    TESTIMONY.  415 

process  of  subpoena.11  It  seems  that  if  it  adds  thereto  a  prayer 
for  other,  or  for  general  relief,  it  will  be  demurrable  for  that 
reason,12  although  the  court  may  allow  an  amendment  omitting 
that  part  of  the  prayer.13  An  affidavit  of  the  circumstances  by 
which  the  evidence  intended  to  be  perpetuated  is  in  danger  of 
being  lost,  must  be  filed  with  the  bill.14  Otherwise,  the  bill 
should  conform  substantially  to  the  requirements  of  original 
bills  praying  relief.  Such  a  bill,  it  has  been  held,  cannot  by 
amendment  be  converted  into  a  bill  of  discovery.15  It  is  of  itself 
a  bill  of  discovery  only  to  the  extent  of  enabling  the  plaintiff  to 
obtain  the  relief  prayed  for  in  it,  and  he  can,  therefore,  only 
require  an  answer  from  the  defendant  as  to  the  facts  alleged  in 
the  bill  as  entitling  him  to  examine  the  witnesses.16  An  omission 
of  any  of  the  foregoing  statements  in,  or  requirements  of,  the  bill 
will  make  it  demurrable ;  and  if  any  of  the  necessary  allegations 
are  false,  or  there  is  another  objection  not  apparent  upon  the 
face  of  the  bill,  that  may  be  taken  by  plea  or  answer.17  If  the 
defendant  answer  denying  the  plaintiff's  case,  witnesses  may  be 
examined  as  to  the  points  in  issue  by  either  party.18  Otherwise, 
such  a  bill  should  not  be  brought  to  a  hearing,  and  if  the  plain- 
tiff do  so  it  will  be  dismissed  with  costs,  but  without  prejudice  to 
the  use  of  the  testimony  taken  in  pursuance  of  its  prayer.19  It  is 
said  that  "  If  the  plaintiff  neglects  to  proceed  with  the  suit,  the 
defendant  cannot  move  to  dismiss  for  want  of  prosecution  ;  but 
may  move  that  the  plaintiff  be  ordered  to  take  the  next  step, 
within  a  limited  time,  or  to  pay  him  the  costs  of  the  suit.  If  the 
defendant  neglects  to  take  the  steps  proper  to  be  taken  by  him 
within  the  prescribed  time  the  court  will,  it  seems,  order  the 
examination  of  the  witnesses  to  proceed."20  If  no  valid  objection 
is  made,  the  court  will  order  the  testimon}7  to  be  taken.     Both 

11  Story's  Eq.  PI.  §  306.  "  Story's  Eq.  PI.  §  306  a. 

12  Rose  v.  Gannel,  3  Atk.  439 ;  Vaughan        18  Brigstocke  v.  Roch,  7  Jur.  n.  s.  63. 
V.  Fitzgerald,  1  Sch.  &  Lef.  316 ;  Story's         19  Hall  v.  Hoddesdon,  2  P.  Wms.  102  ; 
Eq.   PI.   §  306;   Dalton    v.   Thomson,    1  Anon.,  Ambler,  237  :  s.  c.  2  Ves.  Sen.  497  ; 
Dickens,  97.     But  see  Rule  21.  Vaughan  v.  Fitzgerald,  1  Sch.  &  Lef.  316 ; 

13  Vaughan  v.  Fitzgerald,  1  S.  &  L.  316.     Morrison  v.  Arnold,  19  Ves.  670  ;  Ellice  v. 
11  Earl  of  Suffolk  v.  Green,  1  Atk.  450  ;     Roupell,  32  Beav.  308. 

Philips  v.  Carew,  1  P.  Wms.  117 ;  Shirley        20  Daniell's  Oh.  Pr.  (5th  Am.  ed.)  1573  ; 

v.  Earl  Ferrers,  3  P.  Wns.  77.  Wright  v.  Tatham,  2  Simons,  459  ;  Beavan 

1&  Ellice  v.  Roupell,  32  Beav.  299 ;  8.  c.  v.  Carpenter,  11  Simons,  22;  Coveny  r. 

9  Jur.  n.  a.  530.  Athill,  1  Dickens,  355  ;  Lancaster  r.  Lan- 

16  Ellice  v.  Roupell,  32  Beav.  308  ;  s.  c.  caster,  6  Simons,  439. 
9  Jur.  n.  s.  533. 


416  EVIDENCE   AT   LAW   AND   IN   EQUITY.  [CHAP.  XIX. 

parties  may  examine  witnesses  under  the  order,21  and  either  party- 
must  be  allowed  to  cross-examine  those  whom  his  opponent  ex- 
amines in  chief.22  After  the  witnesses  have  been  examined  the 
cause  is  at  an  end,23  and  if  the  defendant  have  examined  no  wit- 
nesses in  chief  he  will  be  entitled  to  his  costs ;  but  by  receiving 
costs  he  waives  any  objection  he  might  otherwise  be  entitled  to 
make  on  the  ground  that  he  has  had  no  sufficient  opportunity 
of  cross-examination.24  The  testimony  thus  taken  is  filed  in  the 
clerk's  office,  and  can  be  used  in  a  subsequent  case  at  law  or 
in  equity  in  the  same  court,  under  an  order,  which  must  be 
obtained  by  motion  upon  notice,  and  supported  by  proof  of  the 
witness's  death  or  that  he  cannot  be  then  compelled  to  attend 
and  testify.25 

§  280.  Bills  to  take  Testimony  de  bene  esse.  —  Bills  to  take  tes- 
timony de  bene  esse  were  formerly  filed  after  a  suit  or  action  had 
been  begun,  in  order  to  take  the  testimony  of  such  witnesses  as, 
on  account  of  their  age,  infirmity,  or  intention  to  depart  from  the 
jurisdiction  of  the  court,  it  was  feared  could  not  be  taken  in  its 
regular  method  of  proceeding.1  Such  bills  must  substantially 
comply  with  the  rules  regulating  bills  to  perpetuate  testimony, 
with  which,  indeed,  they  have  been  often  confounded.2  Now 
that  the  same  relief  can  be  afforded  under  the  statutes  both  of 
most  of  the  individual  States  and  of  the  United  States,3  it  is 
rarely,  if  ever,  that  an  occasion  for  their  use  arises. 

§  281.  Bills  of  Discovery.  —  Every  bill  may  seek  discovery, 
but  the  kind  of  bill  called  a  bill  of  discovery  is  a  bill  filed  for  the 
sole  purpose  of  obtaining  a  discovery  of  facts  resting  in  the 
defendant's  knowledge,  or  of  deeds,  writings,  or  other  things  in 
his  custody  or  power;  and  seeking  no  relief  in  consequence  of 
the  discovery,  except  possibly  a  stay  of  proceedings  till  the  dis- 
covery is  made.1  A  bill  of  discovery  is  usually,  if  not  always, 
used  in  aid  of  the  jurisdiction  of  another  court.2     It  will  not  be 

21  Sheward  v.  Sheward,  2  V.  &  B.  116  ;         »  Darnell's  Ch.  Pr.  (5th  Am.  ed.)  1574, 
Earl  of  Abergavenny  v.  Powell,  1  Meriv.     1575. 

434  ;  Skrine  v.  Powell,  15   Simons,  81  ;         §  280.   I  Story's  Eq.  PI.  §  307. 
8.  c.  9  Jur.  1054  2  Story's  Eq.  PI.  §  307. 

22  Daniell'sCh.  Pr.  (5th  Amed.),  1573,  3  U.  S.   R.  S.  §§863-865,  and   Rule 
1574.                        .  70. 

23  Morrison  v.   Arnold,   19  Ves.  670;         §281.   »  Daniell's   Ch.  Pr.   (5th   Am. 
Vaughan  v.  Fitzgerald.  1  Sch.  &  Lef.  316.  ed.)   1556. 

24  Watkins  v.  Atchison,  10  Hare,  Ap.         2  Daniell's    Ch.    Pr.    (5th    Am.   ed.) 
xlvi.  1556. 


§  281.]  BILLS   OF  DISCOVERY.  417 

allowed,  if  it  seek  a  discovery  of  matters  concerning  which  a 
part}',  if  called  as  a  witness,  would  be  excused  from  testifying  ;3 
nor,  it  has  been  said,  if  the  discovery  is  sought  in  aid  of  an  action 
for  a  mere  personal  tort.4  A  bill  of  discovery  can  only  be  filed  in 
aid  of  a  judicial  proceeding  already  commenced  or  immediately 
contemplated.5  If  filed  in  aid  of  proceedings  already  begun,  no 
person  may  be  made  a  party  to  it  who  is  not  a  party  to  such  pro- 
ceedings,6 except  possibly  the  officer  of  a  corporation.7  A  bill  of 
discovery  must  state  the  matter  touching  which  discovery  is 
sought,  show  that  both  the  plaintiff  and  the  defendant  have  or 
claim  an  interest  therein,  state  the  facts  and  circumstances  upon 
which  the  plaintiff's  right  to  compel  discovery  from  the  defendant 
is  founded,  and  pray  that  the  defendant  may  make  a  full  dis- 
covery of  the  matters  therein  stated.8  A  bill  of  discovery  may 
also  pray  any  equitable  assistance  of  the  court  which  is  merely 
consequential  upon  the  prayer  for  discovery;9  but  if  it  should 
pray  any  other  or  general  relief,  it  will  thereby  become  a  bill  for 
relief.10  It  seems  that  a  bill  of  discovery  need  not  allege  that 
the  facts  of  which  a  discovery  is  sought  are  within  the  exclusive 
knowledge  of  the  defendant;11  but  they  must  be  matters  essen- 
tial to  a  plaintiff's  cause  of  action,  or  if  he  be  defendant  in 
another  suit  or  action,  his  affirmative  defense,  and  the  bill  must 
not  seek  discovery  of  the  evidence  of  a  part  of  what  belongs 
solely  to  the  defendant's  case.12  The  defendant  may  oppose  a 
bill  of  discovery  by  a  demurrer,  or  plea,  or  in  his  answer,  in  the 
same  manner  as  he  might  oppose  a  bill  for  relief.  The  English 
rule,  as  finally  established,  was  that,  if  a  demurrer  were  inter- 
posed to  a  bill  praying  both  discovery  and  relief,  and  the  bill 
were  held  not  to  show  a  proper  case  for  relief,  it  could  not  be 
maintained  for  discovery  merely.13      The  rule    in   the    Federal 

»  Glynn   v.   Houston,    1    Keen,   329;  B  Darnell's  Ch.  Pr.  (5th  Am.  ed.)  1557. 

Langdell's    Eq.    PI.    §  69;    Wigram   on  9  Mitford's  Eq.  PI.  ch.  i.  §  3;  Loker  v. 

Discovery,  §§  1:50-138 ;  Daniell's  Ch.  Pr.  Rolle,  3  Ves.  4. 

(2d  Am.  ed.)  563-569.  "  Angell    v.    Westcombe,    6    Simons, 

4  Glynn  v.  Houston,  1  Keen,  329.  30. 

5  Mayor  of   London  v.  Levy,   8  Ves.  u  Metier  v.  Metier,  4  C.  E.  Green  (19 
398  ;  United  N.  J.  Railroad  &  C.  Company  N.  J.  Eq.),  457. 

w.  Hoppock.  1  Stewart's  Eq.  (N.  J.)  261 ;  12  Wigram  on  Discovery,  §  372;  Lang- 

Daniell's  Ch.  Pr.  1558.  dell's  Eq.  PI.  §  172;    Ingilby   v.  Shafto, 

6  Queen  of  Portugal  v.  Glyn,  7  CI.  &  33  Beav.  31. 

F.  466;   Daniell's  Ch.  Pr.  (5th  Am.  ed.)  13  Fry  v.  Penn,  2  Pro.  C.  C.  280  ;  Loker 

1558.  v.  Rolle,  3  Ves.  4;    Langdell's   Eq.   PL 

'  See  §  43.  §  152. 

27 


418  EVIDENCE    AT   LAW   AND   IN   EQUITY.  [CHAP.  XIX. 

courts  is  uncertain.14  A  defense  founded  upon  the  statute  of 
limitations  or  laches  may  be  interposed  to  a  bill  of  discovery  by 
plea,15  or,  if  it  appear  upon  the  face  of  the  bill,  by  demurrer.16 
A  material  amendment  of  a  bill  of  discovery  will  very  rarely  be 
allowed.17  A  bill  of  discovery  is  never  brought  to  a  hearing  ;  but, 
after  the  defendant  has  put  in  a  full  answer  thereto,  he  is  enti- 
tled to  costs  of  the  suit,18  less  any  costs  allowed  the  plaintiff  upon 
exceptions  to  a  previous  answer  as  insufficient.19  It  has  been 
held  in  the  District  of  Wisconsin  that  a  bill  of  discovery  cannot 
be  maintained  in  a  Circuit  Court  of  the  United  States  held 
within  a  State  under  whose  statutes  a  party  can  be  compelled  to 
testify.20  In  the  Southern  District  of  New  York  a  contrary  rul- 
ing sustaining  such  a  bill  was  made.21 

§  282.  Testimony  taken  before  a  Cause  is  at  Issue.  —  Testimony 
for  use  in  a  court  of  law  or  equity  of  the  United  States  may  be 
taken  either  before  or  after  it  is  at  issue.  Testimony  taken 
before  a  cause  is  at  issue  may  be  taken  either  before  or  after  it 
has  been  begun.  "  Any  court  of  the  United  States  may,  in  its 
discretion,  admit  in  evidence  in  any  cause  before  it  any  deposi- 
tion taken  in  perpetuam  rei  memoriam,  which  would  be  so  ad- 
missible in  a  court  of  the  State  wherein  such  cause  is  pending, 
according  to  the  laws  thereof."  1  Evidence  taken  by  means  of  a 
bill  to  perpetuate  testimony  may  also  be  admitted  in  a  subse- 
quent suit  in  equity.2  "  After  any  bill  filed  and  before  the 
defendant  hath  answered  the  same,  upon  affidavit,  made  that 
any  of  the  plaintiff's  witnesses  are  aged  and  infirm,  or  going  out 
of  the  country,  or  that  any  one  of  them  is  a  single  witness  to  a 
material  fact,  the  clerk  of  the  court  shall,  as  of  course,  upon 
application  of  the  plaintiff,  issue  a  commission  to  such  commis- 
sioner or  commissioners  as  a  judge  of  the  court  may  direct,  to 
take  the  examination  of  such  witness  or  witnesses  de  bene  esse, 

14  Compare  Livingston  v.  Story,  9  Pet.        18  Attorney-General  i>.  Burch,  4  Madd. 
632 ;  Wright  v.  Dame,  1  Met.  (Mass  )  237  ;     178. 

Higinbotham  v.  Burnet,  5  J.  Ch.  (N.  Y.)  "  Hughes  v.  Clerk,  6  Hare,  195. 

184  ;  Story's  Eq.  PI.  §  412 :  with  Markey  20  Rindskopf  v.  Platto,  29  Fed.  R.  130. 

v.  Mutual  Benefit  Life  Ins.  Co.,  6  Ins.  L.  J.  See  also  Heath  v.  Erie  Ry.  Co.,  9  Blatchf. 

537.  316  ;  Brown  v.  Swann,  10  Pet.  497. 

15  Beames  on  Pleas,  275 ;  Gait   v.  Os-  21  Colgate  v.  Compagnie  Franeaise,  23 
baldeston,  1  Russ.  158.  Fed.  R.  82. 

is  Wooster  v.  Sidenbergh,  U.  S.  C.  C.  §  282.   »  U.  S.  R.  S.  §  867. 

S.  D.  N.  Y.  Nov.  6,  1889.  2  New  York  &  Baltimore  Coffee  Polish- 

17  Marquis  Cholmondeley  r.  Lord  Clin-  ing  Co.  v.  New  York  Coffee  Polishing  Co., 

ton,  2  Meriv.  71.  9  Fed.  R.  578. 


§  283.]  TESTIMONY   TAKEN   AFTER   ISSUE   JOINED.  419 

upon  giving  due  notice  to  the  adverse  party  of  the  time  and  place 
of  taking  his  testimony."3  Such  testimony  is  then  taken  in  the 
same  manner  as  testimony  taken  after  issue  has  been  joined. 

S  283.  Testimony  taken  after  a  Cause  is  at  Issue  within  the  Juris- 
diction of  the  Court.  —  Testimony  taken  after  a  cause  is  at  issue 
is  taken  differently  when  taken  within  than  when  taken  without 
the  jurisdiction  of  the  court.  Originally,  the  only  manner  of 
examining  witnesses  within  the  jurisdiction  of  a  Court  of  Chan- 
cery was  by  means  of  written  interrogatories  and  cross-interroga- 
tories, which  were  prepared  by  the  solicitors  and  counsel  of  the 
respective  parties  or  by  the  court,  and  then  submitted  to  an 
examiner  or  one  or  more  commissioners  appointed  by  the  court, 
who  examined  the  witnesses  privately  by  means  of  them.  The 
testimony  thus  obtained  was  kept  secret  until  all  the  testimony 
in  the  cause  had  been  taken.  The  time  when  it  would  first  be 
inspected  was  called  the  time  of  publication.1  In  the  courts  of 
the  United  States  it  seems  that  originally  the  only  method  of 
examination  in  equity  was  by  commissioners.  It  was  regulated 
by  the  following  rules :  — 

"  After  the  cause  is  at  issue,  commissions  to  take  testimony 
may  be  taken  out  in  vacation  as  well  as  in  term,  jointly  by  both 
parties,  or  severally  by  either  party,  upon  interrogatories  filed  by 
the  party  taking  out  the  same  in  the  clerk's  office,  ten  days' 
notice  thereof  being  given  to  the  adverse  party  to  file  cross-inter- 
rogatories before  the  issuing  of  the  commission  ;  and  if  no 
cross-interrogatories  are  filed  at  the  expiration  of  the  time,  the 
commission  may  issue  ex  parte.  In  all  cases,  the  commissioner  or 
commissioners  shall  be  named  by  the  court,  or  by  a  judge  thereof. 
If  the  parties  shall  so  agree,  the  testimony  may  be  taken  upon 
oral  interrogatories  by  the  parties  or  their  agents,  without  filing 
any  written  interrogatories."2  In  1851  it  was  "  ordered,  that  the 
sixty-seventh  rule  governing  equity  practice  be  so  amended  as  to 
allow  the  presiding  judge  of  any  court  exercising  jurisdiction, 
either  in  term  time  or  in  vacation,  to  vest  in  the  clerk  of  said  court 
general  power  to  name  commissioners  to  take  testimony  in  like 
manner  that  the  court  or  judge  thereof  can  now  do  by  the  said 
sixty-seventh  rule." 3     "  Three  months,  and  no  more,  shall  be 

8  TCule  70.  2  Rule  67.    In  1861  the  last  paragraph 

§  283.     '  Langdell's  Equity  Pleading,     of  this  rule  was  repealed. 
55  56-58.  8  Amendment  of  1854  to  Rule  67. 


420  EVIDENCE   AT   LAW   AND    IN    EQUITY.  [CHAP.  XIX. 

allowed  for  the  taking  of  testimony  after  the  cause  is  at  issue, 
unless  the  court,  or  a  judge  thereof,  shall,  upon  special  cause 
shown  by  either  party,  enlarge  the  time  ;  and  no  testimony  taken 
after  such  period  shall  be  allowed  to  be  read  in  evidence  at  the 
hearing.  Immediately  upon  the  return  of  the  commissions  and 
depositions  containing  the  testimony  into  the  clerk's  office,  pub- 
lication thereof  may  be  ordered  in  the  clerk's  office,  by  any  judge 
of  the  court,  upon  due  notice  to  the  parties,  or  it  may  be  enlarged, 
as  he  may  deem  reasonable  under  the  circumstances  ;  but,  by 
consent  of  the  parties,  publication  of  the  testimony  may  at  any 
time  pass  into  the  clerk's  office,  such  consent  being  in  writing, 
and  a  copy  thereof  entered  in  the  order-books,  or  endorsed  upon 
the  deposition  or  testimony."  4  This  method  of  taking  testi- 
mony was,  like  many  other  parts  of  equity  practice,  borrowed 
from  the  canon  law.  But  with  this  difference,  however,  that 
whereas  by  the  canon  law  each  party  before  the  examination  of 
witnesses  was  obliged  to  furnish  his  adversary  and  the  court 
with  articles  containing  a  specific  statement  of  the  facts  which  he 
expected  to  prove  by  them ;  in  equity,  on  the  other  hand,  except 
in  a  few  rare  instances,  facts,  not  evidence,  are  required  to  be 
pleaded.  Consequently,  originally,  each  party  was  before  publi- 
cation very  much  in  the  dark  as  to  the  facts  which  his  antagon- 
ist intended  to  attempt  to  establish.  "  It  is  not  surprising, 
therefore,  that  the  mode  of  taking  testimony  in  equity  fell  into 
disrepute,  and  finally  broke  down."5 

§  284.  Present  Method  of  taking  Testimony  ■within  the  Jurisdic- 
tion. —  Testimony  in  equity  is  now,  therefore,  almost  universally 
allowed  to  be  taken  orally  in  the  presence  of  counsel.  The  rules 
regulating  the  practice  of  the  courts  of  the  United  States  upon 
the  subject  are  as  follows :  "  Either  party  may  give  notice  to  the 
other  that  he  desires  the  evidence  to  be  adduced  in  the  cause  to 
be  taken  orally,  and  thereupon  all  the  witnesses  to  be  examined 
shall  be  examined  before  one  of  the  examiners  of  the  court,  or 
before  an  examiner  to  be  specially  appointed  by  the  court,  the 
examiner  to  be  furnished  with  a  copy  of  the  bill  and  answer,  if 
any;  and  such  examination  shall  take  place  in  the  presence  of 
the  parties  or  their  agents,  by  their  counsel  or  solicitors,  and  the 
witnesses  shall  be  subject  to  cross-examination  and  re-examina- 

«  Rule  69. 

6  Langdell's  Eq.  PI.  §  56.     See  also  Langdell's  Eq.  PI.  §§  14-19. 


§  284]  TESTIMONY   TAKEN   WITHIN    THE   JURISDICTION.  421 

tion,  and  which  shall  be  conducted  as  near  as  may  be  in  the 
mode  now  used  in  the  common-law  courts.  The  depositions 
taken  upon  such  oral  examinations  shall  be  taken  down  in  writ- 
ing by  the  examiner  in  the  form  of  a  narrative,  unless  he  deter- 
mines the  examination  shall  be  by  question  and  answer  in  special 
instances ;  and,  when  completed,  shall  be  read  over  to  the  wit- 
ness and  signed  by  him  in  the  presence  of  the  parties  or  counsel,  or 
such  of  them  as  may  attend ;  provided  if  the  witness  shall  refuse 
to  sign  the  said  deposition,  then  the  examiner  shall  sign  the  same  ; 
and  the  examiner  may,  upon  all  examinations,  state  any  special 
matter  to  the  court  as  he  shall  see  fit ;  and  any  question  or  ques- 
tions which  may  be  objected  to  shall  be  noted  by  the  examiner 
upon  the  deposition,  but  he  shall  not  have  power  to  decide  on 
the  competency,  materiality,  or  relevancy  of  the  questions ;  and 
the  court  shall  have  power  to  deal  with  the  costs  of  incompetent, 
immaterial,  or  irrelevant  depositions,  or  parts  of  them,  as  may  be 
just."  *  "  In  case  of  refusal  of  witnesses  to  attend,  to  be  sworn, 
or  to  answer  any  question  put  by  the  examiner,  or  by  counsel  or 
solicitor,  the  same  practice  shall  be  adopted  as  is  now  practised 
with  respect  to  witnesses  to  be  produced  on  examination  before 
an  examiner  of  said  court  on  written  interrogatories.  Notice 
shall  be  given  by  the  respective  counsel  or  solicitors,  to  the  oppo- 
site counsel  or  solicitors,  or  parties,  of  the  time  and  place  of  the 
examination,  for  such  reasonable  time  as  the  examiner  may  fix 
by  order  in  each  cause.  When  the  examination  of  witnesses  be- 
fore the  examiner  is  concluded,  the  original  deposition,  authenti- 
cated by  the  signature  of  the  examiner,  shall  be  transmitted  by 
him  to  the  clerk  of  the  court,  to  be  there  filed  of  record,  in  the 
same  mode  as  prescribed  in  the  thirtieth  section  of  Act  of 
Congress,  September  24,  1789.2  Testimony  may  be  taken  on 
commission  in  the  usual  way,  by  written  interrogatories  and 
cross-interrogatories,  on  motion  to  the  court  in  term  time,  or  to  a 
judge  in  vacation,  for  special  reasons  satisfactory  to  the  court  or 
judge."3  "Where  the  evidence  to  be  adduced  in  a  cause  is  to 
be  taken  orally,  as  provided  in  the  order  passed  at  the  December 
term,  1861,  amending  the  67th  General  Rule,  the  court  may,  on 
motion  of  either  party,  assign  a  time  within  which  the  complain- 

§284.  i  Amendment  of  1861  to  Rule  67.         2  See    §§  286,  287,  and  U.   S.  R.   S. 

Interrogatories  may  be  referred  to  a  mas-  §  865. 

ter  for  an  inquiry  into  their  relevancy.  8  Amendment  of  18G1  to  Rule  67. 

Zunkel  v.  Litchfield,  21  Fed.  R.  196. 


422  EVIDENCE   AT   LAW   AND   IN   EQUITY.  [CHAP.  XIX. 

ant  shall  take  his  evidence  in  support  of  the  bill,  and  a  time 
thereafter  within  which  the  defendant  shall  take  his  evidence  in 
defence,  and  a  time  thereafter  within  which  the  complainant 
shall  take  his  evidence  in  reply  ;  and  no  further  evidence  shall 
be  taken  in  the  cause,  unless  by  agreement  of  the  parties,  or  by 
leave  of  the  court  first  obtained,  on  motion,  for  cause  shown."  4 
"  Three  months,  and  no  more,  shall  be  allowed  for  the  taking  of 
testimony  after  the  cause  is  at  issue,  unless  the  court,  or  a  judge 
thereof,  shall,  upon  special  cause  shown  by  either  party,  enlarge 
the  time  ;  and  no  testimony  taken  after  such  period  shall  be 
allowed  to  be  read  in  evidence  upon  the  hearing."  5  "  The  tes- 
timony of  any  witness  may  be  taken  in  any  civil  cause  depending 
in  a  District  or  Circuit  Court  by  deposition  de  bene  esse,  when 
the  witness  lives  at  a  greater  distance  from  the  place  of  trial  than 
one  hundred  miles,  or  is  bound  on  a  voyage  to  sea,  or  is  about  to 
go  out  of  the  United  States,  or  out  of  the  district  in  which  the 
case  is  to  be  tried,  and  to  a  greater  distance  than  one  hundred 
miles  from  the  place  of  trial,  before  the  time  of  trial  or  when  he 
is  ancient  and  infirm.  The  deposition  maj7  be  taken  before  any 
judge  of  any  court  of  the  United  States,  or  any  commissioner  of 
a  Circuit  Court,  or  any  clerk  of  a  District  or  Circuit  Court,  or 
any  chancellor,  justice  or  judge  of  a  supreme  or  superior  court, 
mayor  or  chief  magistrate  of  a  City,  judge  of  a  county  court  or 
court  of  common  pleas  of  any  of  the  United  States,  or  any  notary 
public,  not  being  of  counsel  or  attorney  to  either  of  the  parties, 
nor  interested  in  the  event  of  the  cause.  Reasonable  notice  must 
first  be  given  in  writing  by  the  party  or  his  attorney  proposing 
to  take  such  deposition,  to  the  opposite  party  or  his  attorney  of 
record,  as  either  may  be  nearest,  which  notice  shall  state  the  name 
of  the  witness  and  the  time  and  place  of  the  taking  of  his  deposi- 
tion ;  and  in  all  cases  in  rem,  the  person  having  the  agency  or 
possession  of  the  property  at  the  time  of  seizure  shall  be  deemed 
the  adverse  party,  until  a  claim  shall  have  been  put  in  ;  and 
whenever,  by  reason  of  the  absence  from  the  district  and  want 
of  an  attorney  of  record  or  other  reason,  the  giving  of  the  notice 
herein  required  shall  be  impracticable,  it  shall  be  lawful  to  take 
such  depositions  as  there  shall  be  urgent  necessity  for  taking, 
upon  such  notice  as  any  judge  authorized  to  hold  courts  in  such 

*  Amendment  of  1869  to  Rule  67.  Fed.  R.  98  ;  Street  v.  Steman,  38  Fed  R. 

6  Rule  69.     See  Coon  v.  Abbott,  37    548. 


§  285.]  TESTIMONY   TAKEN    BEYOND   THE    JUKISDICTION.  423 

circuit  or  district  shall  think  reasonable  and  direct.  Any  person 
may  be  compelled  to  appear  and  depose  as  provided  by  this  sec- 
tion, in  the  same  manner  as  witnesses  may  be  compelled  to  appear 
and  testify  in  court."6  "Every  person  deposing  as  provided  in 
the  preceding  section,  shall  be  cautioned  and  sworn  to  tell  the 
whole  truth,  and  carefully  examined.  His  testimony  shall  be  re- 
duced to  writing  by  the  magistrate  taking  the  deposition,  or  by 
himself  in  the  magistrate's  presence,  and  by  no  other  person,  and 
shall,  after  it  has  been  reduced  to  writing,  be  subscribed  by  the 
deponent."  7  "  Every  deposition  taken  under  the  two  preceding 
sections,  shall  be  retained  by  the  magistrate  taking  it,  until  he 
delivers  it  with  his  own  hand  into  the  court  for  which  it  is  taken  ; 
or  it  shall,  together  with  a  certificate  of  the  reasons  as  aforesaid  of 
taking  it  and  of  the  notice,  if  any,  given  to  the  adverse  party,  be 
by  him  sealed  up  and  directed  to  such  court,  and  remain  under 
his  seal  until  opened  in  court.  But  unless  it  appears  to  the  sat- 
isfaction of  the  court  that  the  witness  is  then  dead,  or  gone  out 
of  the  United  States,  or  to  a  greater  distance  than  one  hundred 
miles  from  the  place  where  the  court  is  sitting,  or  that,  by  reason 
of  age,  sickness,  bodily  infirmity,  or  imprisonment,  he  is  unable 
to  travel  and  appear  at  court,  such  deposition  shall  not  be  used 
in  the  cause."8  Whether  the  judge  can  in  his  discretion  permit 
oral  testimony  to  be  taken  before  him  at  the  hearing  of  the  cause 
has  not  yet  been  decided  by  the  Supreme  Court.9  If  it  is  desired 
to  review  upon  appeal  a  judge's  refusal  so  to  do,  the  testimony 
thus  rejected  by  him,  or  at  least  its  substance,  must  be  taken 
down  so  that  it  may  appear  upon  the  record.10 

§  285.  Testimony  taken  after  a  Cause  is  at  Issue  and  beyond  the 
Jurisdiction  of  the  Court.  —  It  often  happens  that  a  witness,  whose 
testimony  is  needed  by  either  party  to  a  suit  in  equity,  is  beyond 
the  jurisdiction  of  the  court.  In  such  a  case,  his  testimony  can  be 
taken  in  three  ways,  —  by  deposition,  according  to  the  acts  of  Con- 
gress ;2  by  a  commission  under  a  dedimus  potestatem  ;2  and  by  letters 
rogatory.3  Whether  a  Circuit  Court  can  appoint  a  special  examiner 
to  take  testimony  beyond  its  territorial  jurisdiction,  is  doubtful.4 

6  U.  S.  R.  S.  §  863.  s  see  §  290. 

7  U.  S.  R.  S.  §  864.  4  in  North  Carolina   Railroad  Co.  v. 

8  U.  S.  R.  S.  §  865.  Drew,  3  Woods,  601,  this  was  done.     In 

9  Blease  v.  Garlington,  92  U.  S.  1,  7.  Arnold  v.  Chesebrough,  35  Fed.  R.  16, 
10  Blease  v.  Garlington,  92  U.  S.  1,  8.  and  Celluloid  Manuf.  Co.  v.  Russell,  35 
§  285.   1  See  §§  286,  287.  Fed.  R.  17,  such  a  request  was  refused. 

2  See  §§  288,  289. 


424  EVIDENCE   AT   LAW   AND   IN   EQUITY.  [CHAP.  XIX. 

§  286.  Depositions  de  bene  esse  under  the  Acts  of  Congress.  — 
The  equity  rules  say  that  "  testimony  may  also  be  taken  in  the 
cause,  after  it  is  at  issue,  by  deposition,  according  to  the  acts  of 
Congress.  But  in  such  case,  if  no  notice  is  given  to  the  adverse 
party  of  the  time  and  place  of  taking  the  deposition,  he  shall, 
upon  motion  and  affidavit  of  the  fact  be  entitled  to  a  cross- 
examination  of  the  witness  either  under  a  commission  or  by  a 
new  deposition  taken  under  the  act  of  Congress,  if  a  court  or 
a  judge  thereof  shall,  under  all  the  circumstances,  deem  it  reason- 
able." 1  The  acts  of  Congress  on  the  subject  are  as  follows :  The 
magistrate  should  write  down  and  return  to  the  court  any  species 
of  evidence  offered  before  him,  and  cannot  exclude  evidence  on 
the  ground  that  it  is  not  pertinent.  It  belongs  to  the  court,  on 
the  return  of  the  deposition,  to  determine  whether  the  evidence 
is  pertinent  or  not.2  The  relevancy  of  a  question  and  the  right 
to  have  the  deposition  taken  will  be  tested,  if  the  witness  refuses 
to  answer,  and  an  application  is  made  to  punish  him  for  con- 
tempt.3 These  statutory  provisions,  being  in  derogation  of  the 
common  law,  are  strictly  construed.4  Consequently,  before  depo- 
sitions thus  taken  can  be  read  in  evidence,  the  party  that  offers 
them  must  prove  that  compliance  was  made  with  all  the  require- 
ments of  the  statutes,  or  else  that  these  requirements  were  waived 
by  the  opposite  party.5  There  is  no  presumption  that  a  deposi- 
tion was  properly  taken.6  The  certificate  of  the  magistrate  is 
sufficient  evidence  of  such  a  compliance.7  He,  however,  need 
not  state  in  his  certificate  that  he  was  not  of  counsel  for  either 
part}'  nor  interested  in  the  event  of  the  cause  ;8  nor,  it  has  been 
held,  that  the  witness  was  "  sworn  to  testify  the  whole  truth,"  if 
the  certificate  states  that  the  witness  was  sworn ; 9  nor,  perhaps, 
that  the  witness  is  not  a  resident  of  the  district  where  the  case 
is  pending.10  The  fact  that  a  witness  is  a  seaman  on  a  gunboat 
stationed  in   a  harbor,  but  liable  to  be  ordered  to  some  other 

§  286.    1  Rule    68.      See    Stegner    v.         7  Harris  v.  Wall,  7  How.  693 ;  Thorpe 

Blake,  36  Fed.  R.  183.  v.  Simmons,  2  Craneh  C.  C.  195. 

2  Ex  parte  WTilliam  Judson,  3  Blatchf.  8  Miller  v.  Young,  2  Craneh  C.  C.  53  ; 

148.  Peyton  v.  Veitch,  2  Craneh  C.  C.  123. 

s  Ex  parte  Elisha  Peck,  3  Blatchf.  113;  9  Bussard  v.  Catalino,  2  Craneh  C.  C. 

Ex  parte  William  Judson,  3  Blatchf.  148.  421.     But  see  Rainer  v.  Haynes,  Hempst. 

*  Bell  v.  Morrison,  1  Pet.  351.  689  ;    Garrett    v.    Woodward,  2    Craneh 

6  Bell  v.  Morrison,  1  Pet.  351 ;  Harris  C.  C.  190. 
v.  Wall,  7  How.  693.  10  Sage  v.  Tauszky,  6  Cent.  L.  J.  7. 

6  Bell  v.  Morrison,  1  Pet.  351 ;  Banks 
v.  Miller,  1  Craneh  C.  C.  543. 


§  286.]         TESTIMONY   TAKEN    BEYOND    THE   JURISDICTION.  425 

place,  is,  it  seems,  not  sufficient  to  authorize  the  taking  of  his 
testimony  de  bene  esse  in  this  manner.11  No  order  or  rule  of  the 
court  is  necessary  in  order  to  take  depositions  in  this  manner.12 
Although  one  deposition  has  been  already  taken,  yet  a  second 
deposition  of  the  same  witness  may  be  taken  without  an  order  of 
the  court.13  It  is,  however,  customary  to  file  the  notice  or  a 
copy  thereof  in  the  clerk's  office  before  the  issue  of  the  subpoenas. 
Any  one,  even  a  party  to  the  suit,  may  serve  the  notice.14  If  the 
United  States  be  a  party,  it  seems  that  service  should  be  made 
upon  the  nearest  district  attorney.15  The  service  must  be  per- 
sonal, unless  otherwise  expressly  authorized  as  provided  for  in 
the  statute.16  The  notice  must  be  served  a  reasonable  time  be- 
fore the  taking  of  the  deposition.17  An  hour's  notice  has,  how- 
ever, been  held  to  be  reasonable.18  It  seems,  however,  that  it  is 
not  proper  to  serve  a  notice  for  the  taking  of  a  deposition  during 
a  term  at  which  the  cause  could  be  tried  ; 19  or  so  short  a  time 
before  as  not  to  allow  an  attorney,  if  he  attend,  to  reach  the 
court  before  the  commencement  of  that  term.20  The  notice  must 
show  on  its  face  that  the  contingency  has  happened  which  con- 
fers jurisdiction  on  the  magistrate,  and  gives  the  party  serving  it 
a  right  to  have  the  deposition  taken  ;  so  that  the  party  upon 
whom  it  is  served  may  be  able  to  judge  whether  it  is  necessary 
for  him  to  attend.21  If  the  witnesses'  Christian  names  are  un- 
known, the  inclusion  of  their  surnames  in  the  notice  will  be 
sufficient.22  If  the  notice  state  that  the  taking  of  depositions 
will  be  adjourned  from  day  to  day,  it  seems  that  depositions 
taken  upon  an  adjourned  day  will  be  received.23  It  seems  that 
if  the  witness  is  properly  sworn,  it  is  not  necessary  that  he  be 


11  The  Samuel,  1  Wheat.  9.  29  ;  Bowie  v.  Talbot,  1  Cranch  C.  C.  247  ; 

12  Pettibone  v.  Derringer,  4  Wash.  215 ;  Atkinson  v.  Glenn,  4  Cranch  C.  C.  134. 
Buckingham  v.  Burgess,  3  McLean,  368.         ^  Allen  v.  Blunt,  2  W.  &  M.  121 ;  Bell 
But  see  Walker  v.  Parker,  5  Cranch  C.  C.  v.  Nimmon,  4  McLean,  539. 

639.  20  Bell  v.  Nimmon,  4  McLean,  539. 

13  Cornett  v.  Williams,  20  Wall.  220.  2»  Harris  v.  Wall,  7  How.  693.     Contra, 

14  Young  v.  Davidson,  5  Cranch  C.  C.  Debutts  v.  McCulIoch,  1  Cranch  C.  C.  286  ; 
515.  Sage  v.  Tauszky,  6  Cent.  L.  J.  7. 

i6  The  Argo,  2  Gall.  314.  22  Claxton    v.   Adams,    1    Mac  Arthur 

16  Carrington  v.  Stimson,  1  Curtis,  437.  (D.  C),  496.     See  Carrington  v.  Stimson, 

17  Jamieson  v.  Willis,  1  Cranch  C.  C.  1  Curt.  437. 

566  ;  Renner  v.  Howland,  2  Cranch  C.  C.         23  Knode  v.  Williamson,  17  Wall.  586  ; 

441  ;    Barrell    v.    Simonton,    3    Cranch  Sage  t'.  Tauszky,  6  Cent.  L.  J.  7.     But 

C.  C.  681.  see  Kirkpatrick  v.  Baltimore  &  Ohio  R.  R. 


18 


Leiper   v.  Bickley,  1  Cranch  C.  C.     Co.,  24  Pittsb.  L.  J  61. 


426 


EVIDENCE   AT   LAW   AND   IN   EQUITY.  [CHAP.  XIX. 


also  cautioned  to  testify  the  whole  truth;24  and  that  the  oath 
may  be  administered  after  the  deposition  has  been  reduced  to 
writing,  as  well  as  before.25  If  the  witness  has  conscientious 
scruples  about  taking  an  oath,  he  may  affirm.26  The  certificate  of 
the  magistrate  that  the  witness  has  such  conscientious  scruples 
is  sufficient  evidence  thereof.27 

§  287.  Form  of  Deposition  under  Acts  of  Congress.  —  The  depo- 
sition should  state  either  in  its  body  or  in  its  caption  the  name 
of  the  court  where  the  cause  is  pending,1  the  title  of  the  cause,2 
and  the  place  where  the  deposition  is  taken.3  If  the  depo- 
sition is  sent  by  mail,  the  magistrate  should  certify  that  it  was 
retained  by  him  until  sealed  up  and  directed  to  the  court.4  If 
he  have  an  official  seal  under  which  he  usually  certifies  his  acts, 
it  seems  that  this  certificate  should  be  under  that  seal.5  It  seems 
that  it  will  be  presumed  that  he  occupies  the  official  position 
which  he  assumes  in  his  certificate  ; 6  certainly  so,  if  he  be  a  no- 
tary public  and  certifies  under  his  notarial  seal ; 7  and  this  may 
always  be  proved  by  oral  testimony  like  any  other  material  fact.8 
The  deposition  may  be  directed  to  either  the  judge  or  the  clerk 
of  the  court.9  It  cannot  be  read  in  evidence  if  opened  anywhere 
but  in  court,  except  by  consent,10  which  it  will  be  well  to  have 
appear  by  writing  duly  signed  and  filed  with  or  indorsed  on  the 
deposition.11  It  may  be  read,  however,  though  it  has  been  taken 
from  the  files  with  the  court's  leave  and  the  magistrate  has 
amended    his    certificate.12     If  an    attorney   appear   and    cross- 


24  Doe  d.  Moore  v.  Nelson,  3  McLean, 
383;  Brown  v.  Piatt,  2  Cranch  C.  C.  253. 
Contra,  Luther  v.  The  Merritt  Hunt, 
Newb.  4. 

25  Tooker  v.  Thompson,  3  McLean,  92. 

26  U.  S.  R.  S.  §  1. 

27  Elliot  v.  Hayman,  2  Cranch  C.  C.678. 
§  287.   l  Van  Ness  v.  Heineke,  2  Cranch 

C.  C.  259. 

2  Peyton  v.  Veitch,  2  Cranch  C.  C.  123 
Smith  v.  Coleman,  2  Cranch  C.  C.  237 
Centre   v.   Keene,   2  Cranch   C.  C.  198 
Waskern  v.  Diamond,  Hempst.  701 ;  Al- 
len v.  Blunt,  2  W.  &   M.  121.     But   see 
Voce  v.  Lawrence,  4  McLean,  203 ;  Buck- 
ingham v.  Burgess,  3  McLean,  368  ;  Pan- 
nill  v.  Eliason,  3  Cranch  C.  C.  358. 

3  Pentleton  v.  Forbes,  1  Cranch  C.  C. 
507;  Tooker  v.  Thompson,  3  McLean, 
92. 


4  Shankwiker  v.  Reading,  4  McLean, 
240  ;  Jones  v.  Neale,  1  Hughes,  268. 

5  Paul  v.  Lowry,  2  Crancli  C.  C.  628. 
But  see  Price  v.  Morris,  5  McLean,  4. 

6  Ruggles  v.  Bucknor,  1  Paine,  358 ; 
Price  v.  Morris,  5  McLean,  4 ;  Vasse  v. 
Smith,  2  Cranch  C.  C.  31 ;  Whitney  v. 
Huntt,  5  Cranch  C.  C.  120.  But  see 
Tooker  v.  Thompson,  3  McLean,  92. 

7  Dinsmore  v.  Maroney,  4  Blatchf .  416. 

8  Paul  v.  Lowry,  2  Cranch  C.  C.  628; 
Dunlop  t'.Munroe,  1  Cranch  C.  C.  536. 

»  Thorp  v.  Orr,  2  Cranch  C.  C.  335  ; 
Whitney  v.  Pluntt,  5  Cranch  C.  C.  120. 

10  Beale  v.  Thompson,  8  Cranch,  70; 
The  Roscius,  1  Brown  Adm.  442. 

11  The  Roscius,  1  Brown  Adm.  442. 

12  Leatherberry  v.  Radcliffe,  6  Cranch 
C.  C.  650. 


§  288.]      COMMISSIONS  ISSUED  UNDER  A  DEDIMUS    POTESTATEM.      427 

examine  a  witness  without  objection,  he  thereby  waives  any 
irregularity  in  the  notice,13  or  in  the  form  or  manner  of  the  pro- 
ceedings,14 or,  it  seems,  an  incompetency  in  the  witness  then 
known  to  him,15  or  any  other  formal  defect.  His  presence,  how- 
ever, if  he  declines  to  take  any  part  in  the  proceedings,  does 
not.16  In  general,  all  defects  in  form  can  only  be  raised  by  a 
motion  to  suppress  the  deposition ; 17  and  the  court  will  usually 
allow  an  adjournment  of  the  hearing  in  order  that  the  testimony 
may  again  be  taken.18 

§  288.  Commissions  issued  under  a  Dedimus  Potestatem.  —  The 
Revised  Statutes  provide  that  in  any  case  where  it  is  necessary, 
in  order  to  prevent  a  failure  or  delay  of  justice,  any  of  the  courts 
of  the  United  States  may  grant  a  dedimus  potestatem  to  take 
depositions  according  to  common  usage.  And  the  provisions  of 
sections  eight  hundred  and  sixty-three,  eight  hundred  and  sixty- 
four,  and  eight  hundred  and  sixty-five  do  not  apply  to  any  depo- 
sition to  be  taken  under  the  authority  of  this  section.1  The 
words  "  common  usage  "  when  applied  to  a  suit  in  equity,  signify 
the  ordinary  practice  of  courts  of  equity.'2  Depositions  may  be 
taken  under  this  section  of  the  Revised  Statutes,  even  though 
the  witness  live  within  one  hundred  miles  of  the  court  where  the 
cause  is  pending  ;3  or  in  a  country  with  which  the  United  States 
are  at  war.4  Such  a  commission  is  not  granted  as  of  course,  but 
only  upon  good  cause  shown.5  The  application  must  be  made  in 
open  court,  and  not  to  a  judge  at  chambers ; 6  and  must  be  ac- 
companied by  an  affidavit  showing  that  the  testimony  which  the 
party  desires  to  take  is  material.7  It  seems  that  the  commission 
need  not  specify  the  exact  place  where  the  depositions  are  to  be 
taken  ;  but  if  it  do,  the  commissioners  should  conform  to  it  in 


13  Dinsmore    v.   Maroney,   4  Blatchf.  §  288.   i  U.  S.   R.   S.  §  866  ;  Jones  v. 

416.  Oregon  Central  R.  R.  Co.,  3  Sawyer,  623. 

"  Shutte  v.  Thompson,  15  Wall.  151 ;  2  United  States  v.  Parrott,  1  McAll. 

In  re  Thomas,  35  Fed.  R.  822.  447. 

15  United  States  v.  One  Case,  1  Paine,  8  Wellford  v.  Miller,  1  Cranch  C.  C. 
400.  485 ;  Russell  v.  M'Lellan,  3  W.  &  M.  157. 

16  Harris  v.  Wall,  7  How.  693.  4  Peters  v.  Prevost,  1  Paine,  64. 

17  Claxton    v.    Adams,    1    MacArthnr  5  United  States  v.  Parrott,  1  McAll. 
(D.  C),  496  ;  Bank  of  Danville  v.  Trav-  447. 

ers,  4   Biss.   607  ;    Brooks  v.  Jenkins,  3  6  Peters  v.  Prevost,  1  Paine,  64. 

McLean,  432.  7  Sutton  v.  Mandeville,  1  Cranch  C.  C. 

18  Luther  v.  The  Merritt  Hunt,  Newb.  115;   United  States  v.  Parrott,  1  McAll. 
4 ;  Doe  d.  Moore  v.  Nelson,  3  McLean,  447. 

383. 


428  EVIDENCE    AT   LAW    AND    IN   EQUITY.  [CHAP.  XIX. 

that  respect.8  Whether  a  party  will  or  will  not  be  required  before 
the  commission  is  issued  to  name  the  witnesses  to  be  examined 
under  it,  depends  upon  the  discretion  of  the  court,  to  be  exercised 
under  the  circumstances  of  each  case.9  Before  the  issue  of  the 
commission,  the  proposed  interrogatories  should  be  filed10  and 
served  upon  the  opposite  party  or  his  attorney  ; u  and  the  latter 
given  a  reasonable  time,  usually  fixed  by  the  court,  within  which 
to  object  to  them  and  to  file  cross-interrogatories.12  If  he  omit 
to  do  so,  the  commission  may  be  issued  without  further  notice.13 
The  interrogatories  are  drawn  up  substantially  as  those  for  the 
examination  of  witnesses  within  the  jurisdiction  of  the  court.14 
Objections  to  interrogatories  or  cross-interrogatories  should  be  in 
the  form  of  exceptions  to  them,  and  must  be  filed  before  the  com- 
mission issues  ;  or  otherwise  will  be  held  waived.15  If  the  parties 
cannot  agree  as  to  their  form  or  substance,  a  reference  may  be 
ordered  to  a  master,  whose  report  will  be  reviewed  by  the  court.16 
If  there  be  any  doubt  as  to  the  relevancy  or  propriety  of  an  in- 
terrogatory, the  ultimate  decision  thereon  will  be  reserved  until 
the  hearing,  and  it  will  be  allowed  to  stand  and  be  answered  ; 
if  there  be  no  doubt  as  to  its  irrelevancy  or  impropriety,  it  will 
be  stricken  out  before  the  commission  issues.17  A  commission 
must  always  name  or  designate  the  commissioner  or  commission- 
ers.18 A  woman  may  be  a  commissioner,  even  though  she  be  the 
wife  of  the  witness  to  be  examined.19  The  court  may  grant  an 
order  that  exhibits  annexed  to  a  deposition  already  taken  may  be 
removed  from  the  file  and  attached  to  a  commission,  provided 
that  copies  of  them  are  left  in  their  place.'20 

§  289.  Proceedings  under  a  Dedimus  Potestatem.  —  If  the  ap- 
plication does  not  state  when  and  where  the  commission  is  to  be 
executed,  the  party  at  whose  instance,  or  the  commissioner  to 
whom  it  is  issued,  should  notify  the  adverse  party  or  his  solicitor 

8  Rhoades  v.  Selin,  4  Wash.  715.  16  Cocker  v.  Franklin  H.  &  B.  Co.,  1 

9  Parker  v.  Nixon,  Baldw.  291.  Story,  169. 

io  Cunningham  v.  Otis,  1  Gall.  166.  J6  Cocker  v.  F.  H.  &  B.  Co.,  1  Story, 

u  Rhoades  v.  Selin,  4  Wash.  715  ;  Mer-  169  ;   Boudereau  v.  Montgomery,  4  Wash, 

rill  v.   Dawson,    Hempst.  563  ;    s.  c.  sub  186. 

nom.  Fowler  v.  Merrill,  11  How.  375.  "  Cocker  v.  F.  H.  &  B.  Co.,  1  Story, 

i2  Frevall  v.  Bache,   5   Cranch  C.  C.  169. 

463 ;  The  Norway,  1  Ben.  493.  18  Vanstophorst  v.  Maryland,  2  Dal! 

is'  Cocker  v.  F.  H.  &  B.  Co.,  1  Story,  401. 

169  19  The  Norway,  2  Benedict,  121. 

"  Rhoades  v.  Selin,  4  Wash.  715.  20  Daly  v.  Maguire,  6  Blatchf.  137. 


§  289.]    PEOCEEDINGS  UNDER  A  DEDIMUS  POTESTATEM.       429 

before  the  depositions  are  taken.1  When,  however,  a  party,  after 
notice  of  an  opportunity  to  do  so,  has  neglected  to  file  cross-in- 
terrogatories, no  further  notice  to  him  is  necessary.2  The  notice 
should  be  served  personally,  or  else  left  at  the  house  of  the  person 
upon  whom  it  is  made  with  a  member  of  his  family  of  sufficient 
intelligence.3  The  person  upon  whom  it  is  left,  however,  need 
not  be  informed  of  its  purport.4  Service  by  mail,  unless  actually 
received  in  time,  is  insufficient.5  An  hour's  notice  of  the  time  of 
taking  a  deposition  in  the  place  where  the  attorney  to  whom  it  is 
given  dwells,  has  been  held  sufficient.6  The  regulation  of  the 
proceedings  under  a  commission  is  a  matter  in  the  discretion  of 
the  court  issuing  it.7  A  commissioner  is  appointed  by  and  repre- 
sents the  court ;  and  is  no  more  than  is  an  arbitrator  the  repre- 
sentative of  the  party  nominating  him.8  The  authority  given  to 
a  commissioner  is  special,  and  must  be  strictly  construed.3  A 
commission  issued  to  more  than  one  commissioner  must  be  exe- 
cuted and  returned  by  all  of  them,10  unless  it  is  otherwise  so  pro- 
vided in  it;11  and  if  any  one  else,  except  a  judge  in  a  foreign 
country  whose  laws  do  not  permit  a  private  individual  to  take 
testimony  alone,12  join  in  its  execution  on  return,  the  testimony 
taken  under  it  will  also  be  suppressed.13  A  commission  must  be 
executed  at  the  time  and  place  named  in  it,  or  in  the  notice.14 
It  has  been  held  that  the  witnesses  under  such  a  commission 
should  be  examined  alone ;  and  the  parties  are  not  allowed  to  be 
present  either  in  person  or  by  attorney,  unless  the  court  other- 
wise directs.15     The  interrogatories   may  be  shown  the  witness 

§289.   >  Rhoadesi*.  Selin,  4  Wash.715  ;  9  Gupp  v.  Brown,  4  Dall.  410  ;  Arm- 

Knode  v.  Williamson,  17  Wall.  586  ;  Mer-  strong  v.  Brown,  1  Wash.  43  ;  Boudereau 

rill  v.   Dawson,    Hempst.  563 ;    s.  c.  sub  v.  Montgomery,  4  Wash.  186. 

nom.   Fowler  v.   Merrill,    11    How.   375;  lJ  Gupp  v.  Brown,  4  Dall.  410;  Arm- 

Dunlop  v.  Munroe,  1  Cranch  C.  C.  536.  strong  v.   Brown,  1  Wash.  43;  Munns  v. 

2  Merrill    v.    Dawson,    Hempst.   563  ;  Dupont,  3  Wash.  C.  C.  31. 

8.  c.  sub  nom.  Fowler  v.  Merrill,  11  How.  "  The  Griffin,  4  Blatchf.  203 ;    Lons- 

375.  dale  v.  Brown,  3  Wash.  404. 

3  Merrill  v.  Dawson,  Hempst.  563 ;  !-  Winthrop  v.  Union  Ins.  Co.,  2 
s.  c.  sub  nom.  Fowler  v.  Merrill,  11  How.  Wash.  7. 

375,  «  Willings  v.  Consequa,  ret.  C.  C.  301. 

*  M'Call  v.  Towers,  1  Cranch  C.  C.  41.  Barnet  v.  Day,  3  Wash.  243. 

5  Walker  v.  Parker,  5  Cranch  C.  C  M  Rhoades  v.  Selin,  4  Wash.  715 ;  Bou- 
639.  dereau    v.    Montgomery,   4    Wash.    186; 

6  Nicholla  v.  White,  1  Cranch  C.  C.  58.  Knode  v.  Williamson,  17  Wall.  586  ;  Bud- 

7  Cunningham  v.  Otis,  1  Gall.  166.  dicum  i\  Kirk,  3  Cranch.  293. 

8  Jones  v.  Oregon  Central  R  R.  Co.,  15  Cunningham  v.  Otis,  1  Gall.  166. 
3  Sawyer,  523;  Gilpins  v.  Consequa,  Pet.  But  see  Knode  v.  Williamson,  17  Wall. 
C.  C.  85;  Gupp  v.  Brown,  4  Dall.  410.  865;  Merrill  v.   Dawson,   Hempst.  563; 


430  EVIDENCE   AT   LAW   AND   IN   EQUITY.  [CHAP.  XIX. 

before  he  is  called  upon  to  give  his  testimony.16  He  must  be 
examined  as  to  each  interrogatory  and  cross-interrogatory ;  and 
if  he  improperly  omits  to  answer  any  one  of  them,  or  if  any  one 
of  them,  an  answer  to  which  would  be  legal  evidence,  is  not  put 
to  him,  his  whole  deposition  may  be  suppressed  at  the  instance 
of  the  party  who  might  be  thereby  injured.17  If,  however,  the 
deposition  have  been  issued  ex  parte,  the  adverse  party  having 
omitted  to  file  cross-interrogatories  after  an  opportunity  to  do 
so  has  been  given  him,  it  has  been  said  that  as  many,  or  as 
few,  of  these  interrogatories  as  the  party  who  filed  them  thinks 
proper  may  be  put,  provided  that  the  general  interrogatory  is  not 
omitted.18  If  the  cross-interrogatories  are  put,  it  makes  no  dif- 
ference how  soon  after  the  direct  interrogatories  have  been  an- 
swered the  witness  is  called  upon  to  answer  them.19  No  additional 
interrogatories,  however,  can  be  filed  with  or  put  by  or  before 
the  commissioner.20  Under  extraordinary  circumstances  the  ex- 
amination of  a  witness  not  named  in  the  commission  might  be 
permitted.21  The  deposition  may  be  taken  down  in  writing 
either  by  the  magistrate  or  by  the  deponent  in  the  presence  of 
the  magistrate;22  but  not  by  the  counsel  for  either  of  the 
parties.23  If  exhibits  are  referred  to  by  the  witness,  they  should 
be  annexed  to  the  deposition  or  identified  by  marks  or  refer- 
ence.24 A  paper  referred  to  by  a  witness,  but  which  is  neither 
in  his  own  power  nor  in  that  of  the  part}'  making  the  objection, 
need  not,  however,  be  included  in  the  deposition  or  thus  identi- 
fied.25 It  has  been  held  that  the  deposition  need  not  be  signed 
by  the  witness.26  A  deposition  prepared  and  signed  some  time 
before  the  oath  is  administered  is  improper  and  will   be  sup- 

s.  c.  sub  nom.  Fowler  v.  Merrill,  11  How.  2e  Cunningham   v.  Otis,   1   Gall.  166; 

375.  Merrill  v.  Dawson,  Hempst.  563 ;    s.  c. 

16  North    Carolina   R.    R.   v.  Drew,   3  sub  nom.  Fowler  v.  Merrill,  11  How.  375. 

Woods,  691.  »  The  Infanta,  Abbott's  Ad.  263. 

"  Ketland  v.  Bissett,    1    Wash.   144  ;  22  Stockwell  v.  United  States,  3  Cliff. 

Nelson  v.  United  States,  Pet.  C.  C.  235  ;  284 ;    Keene  v.  Meade,  3  Pet.  1 ;  s.  c.  sub 

Winthrop  v.  Union  Ins.  Co.,  2  Wash.  7  ;  nom.  Meade  v.  Keane,  3  Cranch  C.  C.  51. 

Bellt;.  Davidson,  3  Wash.  C.C.  328;  Rich-  23  United  States  v.  Pings,  4  Fed.  R.714. 

ardson   v.  Golden,   3   Wash.  C.  C.    109;  But  see  Nicholls  v.  White,  1  Cranch  C.  C. 

Dodge  v.  Israel,  4  Wash.  323  ;  Gilpins  v.  58  ;  Atkinson   v.  Glenn,  4  Cranch  C.  C. 

Consequa,  Pet.  C.  C.  85 ;  s.  c.  3  Wash.  184.  134. 

But  see  Gass  ;>.  Stinson,  3  Sumner,  98.  24  Dodge  v.  Israel,  4  Wash.  323. 

13  Merrill?-.  Dawson,  Hempst.  563;  s.  c.  25  Winans  v.  New  York  &  Erie  R.  R. 

sub  nom.  Fowler  v.  Merrill,  11  How.  375.  Co.,  21  How.  88. 

»  Gilpins  v.  Consequa,  Pet.  C.  C.  85 ;  25  Ketland  v.  Bissett,  1  Wash.  144. 
s.  c.  3  Wash.  184. 


§  2S9.]    PROCEEDINGS  UNDER  A  DED1MUS  POTESTATEM.       431 

pressed.27    The  depositions  should  be  attached  to  the  commission 
and,  with  them,  a  certificate  by  all  the  commissioners  that  they 
have   complied    with   the   requirements   above   described.     The 
commission  should  then  be  sent  or  delivered  to  the  clerk's  office 
of  the  court  unopened,  and  must  there  remain  so  till  publication 
is  allowed  by  order  or  consent.28     The  return,  or  certificate,  of 
the  commissioners  should  state  that  they  were  sworn,  unless  that 
ceremony  has  been  waived,  or  they  are  officers  qualified  to  ad- 
minister an  oath.29     The  return  should  also  state  the  time  and 
place  of  taking  the  depositions  ; 30  that  each  witness  was  sworn 
or  affirmed,  but  not  that  he  was  cautioned ;  nor  need  it  state  the 
form  of  the  oath.31     The  return  need  not  state  in  whose  hand- 
writing the  depositions  were  taken  down ; 32  nor,  if  the  witness 
was  an  alien,  whether  or  not  he  was  examined  by  means  of  an 
interpreter.33     This  certificate  will  be  presumptive  evidence  of 
the  facts  therein  stated  in  relation  to  the  execution  of  the  com- 
mission.34     Otherwise,   proceedings    under    these    commissions 
should  conform  substantially  to  those  under  commissions  to  ex- 
amine witnesses  within  the  jurisdiction  of  the  court.35     Any  ob- 
jection to  the  form  or  manner  of  the  proceedings  can  only  be 
raised  by  a  motion  to  suppress  the  deposition,36  provided  that  suf- 
ficient time  within  which  to  make  such  a  motion  remains  between 
the  return  of  the  commission  and  the  hearing.37    Should  a  foreign 
plaintiff  refuse  to  testify  before  a  commission  when  required  so 
to  do,  the  court  may  deny  him  relief  in  the  suit.38 

27  Dodge  v.  Israel, 4  Wash.  323;  North  83  Gilpins  v.  Consequa,  Pet.  C.  C.  85; 
Carolina  R.  R.  Co.  v.  Drew,  3  Woods,  691.  s.  c.  3  Wash.  184. 

28  Boudereau  v.  Montgomery,  4  Wash.  31  Merrill  v.  Dawson,  Hempst.  563 ;  s.  c. 
186;  Frevall  v.  Bache,  5  Cranch.  C.  C.  sub  nom.  Fowler  v.  Merrill,  11  How.  375; 
463  ;  United  States  v.  Price,  2  Wash.  Boudereau  v.  Montgomery,  4  Wash.  186  ; 
356.  Winter  v.  Simonton,  3  Cranch  C.  C.  104. 

29  Frevall  v.  Bache,  6  Cranch  C.  C.  ^  Jones  v.  Oregon  Central  R.  R.  Co., 
463;  Hoyt  v.  Hammekin,  14  How.  346.  3  Sawyer,  523;  United  States  v.  Parrott, 
But  see  Gilpins  v.  Consequa,  Pet.  C.  C.  85 ;  1  McAll.  447.     See  §  284. 

8.  c.  3  Wash.  184.  86  Blackburn  v.  Crawfords,  3  Wall.  175 ; 

80  Rhoades  v.  Selin,  4  Wash.  715  ;  Winans  v.  New  York  &  Erie  R.  B.  Co.,  21 
Boudereau  v.  Montgomery,  4  Wash.  186.  How.  88  ;   Doane  v.  Glenn,  21  Wall.  33 ; 

81  Jones  v.  Oregon  Central  R.  R.  Co.,  York  Co.  v.  Central  R.  R.,  3  Wall.  107; 
3  Sawyer,  523 ;  Keene  v.  Meade,  3  Pet.  1 ;  Walker  v.  Parker,  5  Cranch  C.  C.  639. 

s.  c.  sub  nom.  Meade  v.  Keane,  3  Cranch  37  Sergeant  v.  Biddle,  4  Wheat.  508 ; 

C.  C.  51.  Mechanics' Bank  v.  Seton,  1    Pet.  299; 

82  Keene  v.  Meade,  3  Pet.  1 ;  s.  c.  sub  Buddicum  v.  Kirk,  3  Cranch,  293  ;  Alsop 
nom.  Meade  v.  Keane,  3  Cranch  C.  C.  51 ;  v.  Commercial  Ins.  Co.,  1  Sumner,  451. 
Jones  v.  Oregon  Central  R.  R.  Co.,  3  Saw-  3S  Heath  v.  Erie  Railway  Co.,  9  Blatchf. 
yer,  623.  316. 


432  EVIDENCE   AT   LAW   AND   IN   EQUITY.  [CHAP.  XIX. 

§  290.    Letters   Rogatory.  —  When   the  witnesses  whose  testi- 
mony is  desired   are   in  a  country  whose  laws  do  not   permit 
of  the  execution  of  a  commission  issued  from  a  foreign  court, 
their  testimony  can  only  be  taken    by  means    of   letters  roga- 
tory.    "  This  method  of  obtaining  testimony  from  witnesses  in 
a  foreign  country,  has  always  been  familiar  in  the  Courts  of  Ad- 
miralty; but  it  is  also  deemed  to  be  within  the  inherent  powers 
of  all  Courts  of  Justice.     For,  by  the  law  of  Nations,  Courts  of 
Justice,  of  different  countries,  are  bound  mutually  to  aid  and 
assist  each  other,  for  the  furtherance  of  justice  ;  and  hence,  when 
the  testimony  of  a  foreign  witness  is  necessaiy,  the  Court,  before 
which  the  action  is  pending,  may  send  to  the  Court,  within  whose 
jurisdiction  the  witness  resides,  a  writ,  either  patent  or  close, 
usually  called  a  letter  rogatory,  or  a  commission  sub  mutuae  vicis- 
situdlnis  obtentu,  ac  in  juris  subsidium,  from  those  words  contained 
in  it.     By  this  instrument,  the  Court  abroad  is  informed  of  the 
pendency  of  the  cause,  and  the  names  of  the  foreign  witnesses, 
and  is  requested  to   cause  the  depositions  to  be  taken,  in  due 
course  of  law,  for  the  furtherance  of  justice  ;  with  an  offer,  on 
the  part  of  the  tribunal  making  the  request,  to  do  the  like  for 
the  other  in  a  similar  case.     The  writ  or  commission  is  usually 
accompanied  by  interrogatories,  filed  by  the  parties,  on  each  side, 
to  which  the  answers  of  the  witnesses  are  desired.     The  commis- 
sion is  executed  by  the  Judge  who  receives  it,  either  by  calling 
the  witness  before   himself,  or  by  the  intervention  of  a  commis- 
sioner for  that  purpose  ;  and  the  original  answers,  duly  signed 
and  sworn  to  by  the  deponent,  and  properly  authenticated,"  or 
duly  authenticated  copies  of  the  same  "  are  returned  with  the  com- 
mission to  the  Court  from  which  it  issued.     The  Court  of  Chan- 
cery has  always  freely  exercised   this  power,  by  a  commission, 
either  directed  to  foreign  magistrates,  by  their  official  designa- 
tion, or   more   usually,  to  individuals    by   name ;    which   latter 
course,  the  peculiar  nature  of  its  jurisdiction   and  proceedings 
enables  it  to  induce  the  parties  to  adopt  by  consent,  where  any 
doubt  exists  as  to  its  inherent  authority."  2    A  special  application 
for  an  order  for  letters  rogatory  may  be  made  to  the  court,  and 

§  200.    1  Greenleaf  s  Evidence,  §  320.  and  tit.  27,  rum  add.,  pp.  37,  38,  55-60; 

See  for  a  good  form,  Nelson  v.  United  Clerke's  Praxis,  tit.  27 ;  1  Roll.  Abr.  530, 

States,  1  Pet.  C.  C.  236,  note  a.     See  also  pi.  15 ;  Oughton's  Ordo  Judiciorum.Vol.  I. 

Cunningham  v.  Otis,  1  Gall.  166;    Hall's  pp.  150-152,  tit.  05,  96;  Wharton's  Inter- 

Adin.  Pr.  Part  2,  tit.  19,  Vol.  I.  cum  add.,  national  Law  Digest,  Vol.  III.  §  413. 


§  290.]  LETTERS  ROGATORY.  433 

will  be  granted  in  the  first  instance  without  issuing  a  commission, 
upon  satisfactory  proof  that  the  authorities  abroad  will  not  allow 
the  testimony  to  be  taken  in  any  other  manner.2  "  When  any 
commission  or  letter  rogatory,  issued  to  take  the  testimony  of  any 
witness  in  a  foreign  country,  in  any  suit  in  which  the  United 
States  are  parties  or  have  any  interest,  is  executed  by  the  court 
or  the  commissioner  to  whom  it  is  directed,  it  shall  be  returned 
by  such  court  or  commissioner  to  the  minister  or  consul  of  the 
United  States  nearest  the  place  where  it  is  executed.  On  re- 
ceiving the  same,  the  said  minister  or  consul  shall  indorse  there- 
on a  certificate,  stating  when  and  where  the  same  was  received, 
and  that  the  said  deposition  is  in  the  same  condition  as  when  he 
received  it ;  and  he  shall  thereupon  transmit  the  said  letter  or 
commission  so  executed  and  certified  by  mail,  to  the  clerk  of  the 
court  from  which  the  same  issued,  in  the  manner  in  which  his 
official  despatches  are  transmitted  to  the  Government.  And  the 
testimony  of  witnesses  so  taken  and  returned  shall  be  read  as 
evidence  on  the  trial  of  the  suit  in  which  it  was  taken,  without 
objection  as  to  the  method  of  returning  the  same."  3  The  stat- 
utes further  provide  for  the  taking  of  testimony  under  a  com- 
mission in  pursuance  of  letters  rogatory  issued  from  a  court  in 
a  foreign  country,  with  which  the  United  States  are  at  peace,  to 
take  the  testimony  of  a  witness  residing  within  the  United  States, 
in  any  suit  for  the  recovery  of  money  or  property  depending  in 
such  foreign  court  in  which  the  government  of  such  foreign  coun- 
try is  a  party  or  has  an  interest.4 

2  1  Hoffman's  Ch.  Pr.  482 ;   Daniell's         »  U.  S.  R.  S.  §  875. 
Ch.  Pr.  (3d  Am.  ed.  by  Judge  Perkins),         4  U.  S.  R.  S.  §§  4071-4074;  Re  Letters 

Vol.  II.  p.  953  ;  Gason  v.  Wordsworth,  2  Rogatory,  46  Fed.  R.  30G ;  Wharton's  In- 

Ves.    Sen.   336;   Lincoln    v.   Battelle,   6  ternational  Law  Digest,  Vol.  III.  §  413. 
Wend.  (N.  Y.)  475. 

28 


434      DISMISSING  BILLS  OTHERWISE  THAN  AT  A  HEARING.      [CHAP.  XX. 


CHAPTER  XX. 

DISMISSING  BILLS   OTHERWISE  THAN   AT  A  HEARING. 

§  291.  Dismissal  of  Bills  by  the  Plaintiff. — The  plaintiff  may 
dismiss  his  bill  without  costs  at  any  time  before  the  defendant's 
appearance.1  He  may  obtain  the  order  for  the  dismissal  as  of 
course  upon  motion  or  petition,  usually  by  the  latter;2  but  if  the 
dismissal  is  a  violation  of  an  agreement  between  him  and  the 
defendant,  the  order  granting  it  may  be  subsequently  vacated.3 
After  appearance  and  before  a  decree  or  decretal  order,  a  plaintiff 
can  usually  obtain  a  dismissal  upon  payment  of  the  costs  of  such 
of  the  defendants  as  have  appeared  ; 4  but  not,  if  they  or  any  of 
them  would  be  injured  thereby.5  Leave  may  be  granted  upon 
terms,  as,  for  example,  that  the  complainant  stipulate  to  allow 
defendant's  evidence  to  be  used  in  any  subsequent  suit.6  An 
executor  or  other  person,  who  has  filed  a  bill  in  a  representative 
capacity  in  good  faith  with  reasonable  grounds  for  so  doing, 
may  be  excused  payment  of  costs.7  The  motion  for  such  an  order 
should  be  upon  notice.8  These  rules  apply  when  a  plaintiff  sues 
in  behalf  of  himself  and  others,  provided  that  no  one  has  pre- 
viously joined  with  him  as  co-plaintiff,9  unless,  perhaps,  others 
have  contributed  to  the  expenses  of  the  suit  and  wish  it  con- 
tinued.10 The  majority  of  the  stockholders  in  a  corporation 
cannot  always  have  a  suit  discontinued  against  the  wishes  of  its 
directors.11  After  a  decree  or  decretal  order,  however,  the 
plaintiff  may  not  discontinue  without  the  consent  of  all  parties 

§  291.   x  Thompson   v.   Thompson,    7  6  American  Zylonite  Co.  v.  Celluloid 

Beav.  350.  Manuf .  Co.,  32  Fed.  R.  809. 

2  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  790,  7  Arnoux    v.    Steinbrenner,    1   Paige 

791.  (N.Y.),82. 

8  Betts  v.  Barton,  3  Jur.  (n.  s.)  154.  8  American  Zylonite  Co.  v.  Celluloid 

*  C.  &  A.  R.  R.  Co.  v.  Union  Rolling  Manuf.  Co.,  32  Fed.  R.  809. 

Mill  Co.,  109  U.  S.  702  ;  Conn.  &  P.  R.  R.  9  Handford  v.  Storie,  2  Sim.  &  S.  196  ; 

Co.  v.  Hendee,  27  Fed.  R.  678.  Armstrong  v.  Storer,  9  Beav.  277. 

6  Cooper  v.  Lewis,  2  Phil.  178 ;  Ainslie  10  Ex  parte  Railroad  Co.,  95  U.  S.  221  ; 

v.  Sims,  17  Beav.  174  ;  Booth  v.  Leyces-  Miller   v.  Liggett  &  M.  Tobacco  Co.,  7 

ter,  1  Keen,  247  ;  Bank  of  South  Carolina  Fed.  R.  91. 

v.  Rose,  1  Rich.  Eq.  (S.  C.)  292  ;  Stevens  u  Railway  Co.  v.  Ailing,  99  U.  S.  463. 
v.  The  Railroads.  4  Fed.  R.  97- 


§  292.]       DISMISSAL   OF   BILLS   FOR   WANT   OF   PROSECUTION.  435 

who  have  acquired  rights  by  the  decree.12  The  usual  course 
pursued  by  one,  in  whose  name  without  his  consent  a  bill  has 
been  filed,  is  to  move  to  have  it  taken  off  the  file.13  Upon  this 
being  done,  he  may  obtain  his  costs,  as  well  as  any  costs  he  may 
have  been  compelled  to  pay  a  defendant,  from  the  solicitor  who 
filed  the  bill.14  A  plaintiff  cannot,  it  seems,  dismiss  a  part  only 
of  his  bill.  The  proper  course  is  for  him  to  amend  by  omitting 
it.15  When  there  is  more  than  one  plaintiff,  one  of  them  may  by 
special  leave  of  the  court  have  the  bill  dismissed  with  costs  so  far 
as  concerns  himself,  provided  that  no  injury  will  thereby  result  to 
any  other  party.16  If  there  are  several  defendants,  a  plaintiff  may 
obtain  an  order  dismissing  his  bill  as  to  some  of  them,  provided 
that  no  injury  will  be  thereby  done  the  rest.17  A  dismissal  at 
the  plaintiff's  request  before  a  hearing  is  usually  without  pre- 
judice,18 unless  evidence  has  been  taken  and  the  cause  set  down 
for  a  hearing,  when  it  may  be  only  granted  by  a  decree  dismissing 
the  bill  upon  the  merits.19  The  entry  of  an  order  of  discontin- 
uance upon  consent  of  both  parties  amounts  in  effect  to  a  dis- 
missal of  the  bill.20  The  dismissal  of  a  bill  or  of  part  of  a  bill  does 
not  authorize  the  removal  of  the  paper  from  the  clerk's  office 
unless  the  order  so  directs  ;  and  such  a  direction  will  rarely  be 
given.21  Otherwise,  the  paper  remains  a  part  of  the  record,  and 
may  be  used  as  evidence  of  any  admission  therein  contained.22 

§  292.  Dismissal  of  Bills  for  want  of  Prosecution.  —  A  defendant 
is  entitled  to  an  order  dismissing  the  plaintiff's  bill:  if  the  plain- 
tiff does  not  reply  to  any  plea,  or  set  down  any  plea  or  demurrer 
for  argument  on  the  rule-day  when  the  same  is  filed,  or  on  the 
next  succeeding  rule-day,  unless  the  time  within  which  to  do 
either  of  those  things  has  been  enlarged  by  a  judge  of  the  court  j1 
if  the  plaintiff  does  not  reply  to  that  defendant's  answer  on  or 
before  the  next  succeeding  rule-day  after  its  filing,  provided  that 

"  Guilbert  v.  Hawles,  1   Ch.  Cas.  40 ;  But  see  Stevens  v.  The  Railroads,  4  Fed. 

Carrington  v.  Holly,  1  Dickens,  280.  It.  07 ;  and  §  300. 

w  Palmer  v.  Walesby,  L.  Ii.  3  Ch.  App.         19  Rumbly  v.   Stainton,  24   Ala.  712; 

732.  Rochester  v.  Lee,  1  Macn.  &  G.  467.     See 

"  Palmer  v.  Walesby,  L  R.  3  Ch.  App.  Stevens  v.  The  Railroads,  4  Fed.  R.  07. 
732  ;  Wright  v.  Castle,  3  Meriv.  12.  2J  Pictet  Artificial  Ice  Co.  v.  N.  Y.  Ice 

16  Camden    &   Amboy    R.   R.    Co.    v.  Machine  Co.,  12  Fed.  R.  816. 
Stewart,  4  C.  E.  Green  (N.  J.),  69.  21  Lyster  v.  Stickney,  12  Fed.  R.  609, 

««  Ilolkirk  o.   Holkirk,   4    Madd.   50;  610. 
Wintlirop  v.  Murray,  7  Hare,  150.  2-  Lyster  v.  Stickney,  12  Fed.  R.  GOO, 

"  Baily  v.  Lambert,  5  Hare,  178.   •  610. 

is  Danicll's  Ch.  Pr.  (5th  Am.  ed.)  793.         §  292.   >  Rule  38. 


436      DISMISSING  BILLS  OTHERWISE  THAN  AT  A  HEARING.      [CHAP.  XX. 

no  exceptions  have  been  taken  to  the  answer,  or  that  any  ex- 
ceptions filed  are  still  undecided;2  and  possibly  if  no  testimony 
is  taken  by  the  plaintiff  within  three  months  after  the  cause 
is  at  issue,3  or  within  any  shorter  time  that  may  be  assigned  by 
the  court ; 4  although  it  might  be  held  that  in  such  a  case  the 
defendant  must  first  set  the  cause  down  for  a  hearing.  The 
plaintiff's  time  for  doing  any  of  these  things  may,  however, 
be  enlarged,  either  before  or  after  it  has  expired,  b\-  the  court 
or  by  consent  at  any  time  ; 5  and  the  taking  of  any  subsequent 
step  by  the  defendant  in  the  cause,  before  attempting  to  take 
advantage  of  the  default,  will  usually  be  deemed  a  waiver  of  it.6 

§  293.  Dismissal  for  want  of  Jurisdiction.  —  The  Judiciary  Act 
of  1875  provides  that  "if,  in  any  suit  commenced  in  a  circuit  court 
or  removed  from  a  State  court  to  a  circuit  court  of  the  United 
States,  it  shall  appear  to  the  satisfaction  of  said  circuit  court,  at 
any  time  after  such  suit  has  been  brought  or  removed  thereto, 
that  such  suit  does  not  really  and  substantially  involve  a  dispute 
or  controversy  properly  within  the  jurisdiction  of  said  circuit 
court,  or  that  the  parties  to  said  suit  have  been  improperly  or 
collusively  made  or  joined,  either  as  plaintiffs  or  defendants,  for 
the  purpose  of  creating  a  case  cognizable  or  removable  under 
this  Act,  the  said  circuit  court  shall  proceed  no  further  therein, 
but  shall  dismiss  the  suit  or  remand  it  to  the  court  from  which 
it  was  removed,  as  justice  may  require,  and  shall  make  such  order 
as  to  costs  as  shall  be  just."  *  The  court  should  do  this  of  its  own 
motion,  as  soon  as  it  discovers  its  want  of  jurisdiction  or  the  im- 
proper or  collusive  joinder.2  The  Supreme  Court  has  said  that  this 
provision  of  the  Act  of  1875  is  salutary,  and  that  it  is  the  duty 
of  the  Circuit  Courts  to  exercise  their  power  under  it  in  all  proper 
cases.3  Neither  party  has  the  right,  however,  without  pleading 
it  within  the  time  allowed  for  that  purpose,  to  introduce  evidence 
to  contradict  averments  of  the  jurisdictional  facts.4  If,  however, 
from  any  source  the  court  is  led  to  suspect  that  its  jurisdiction 
has  been  imposed  upon  by  the  collusion  of  the  parties  or  in  any 

2  Rule  66.  §  293.   x  Act  of  March  3, 1875,  ch.  137, 

3  Rule  69;  Adams  v.  Howard,  21  Off.     §  5  (18  St.  at  L.  472). 

Gaz_  2G4.  2  Williams  v.  Nottawa,  104  TJ.  S.  209. 

4  Amendment  of  1869  to  Rule  67.  s  Williams  v.  Nottawa,  104  U.  S.  209, 

5  Rules  38,  66,69;  Ex  parte  Poultney     212. 

v.  City  of  Lafayette,  12  Pet.  472.  4  Hartog  v.  Memory,  116  U.  S.  588, 

6  Allen  v.  Mayor,  7  Fed.  R  483 ;  Jack-    590-592. 
eon  v.  Ivimey,  L.  R.  1  Eq.  693. 


§  293.]  DISMISSAL  FOR  WANT   OF   JURISDICTION.  437 

other  way,  it  may  of  its  own  motion  cause  the  necessary  inquiry 
to  be  made,  either  by  having  the  proper  issue  joined  and  tried, 
or  by  some  other  appropriate  form  of  proceeding,  and  act  as 
justice  may  require  for  its  own  protection  against  fraud  or 
imposition.5  In  such  a  case  the  party  that  sought  the  jurisdic- 
tion of  the  Federal  court  should  have  an  opportunity  to  be 
heard  on  the  motion,  and  to  meet  it  by  appropriate  evidence.6 
A  judge  cannot  thus  dismiss  or  remand  a  case  upon  his  personal 
conviction,  although  it  amounts  to  a  moral  certainty ;  the  collu- 
sion or  lack  of  jurisdiction  must  be  legally  proved.7  If  there 
is  no  collusion  and  an  original  defect  in  the  jurisdiction  has  been 
cured  before  the  objection  is  raised,  it  seems  that  the  suit  will 
be  retained.8  Before  the  Act  of  1875,  it  was  held  that  a  defend- 
ant, between  whom  and  the  complainant  the  requisite  difference 
of  citizenship  existed,  could  not  raise  an  objection  on  account  of 
the  citizenship  of  another  defendant.9  It  has  been  said,  that  a 
defect  in  the  jurisdiction  of  the  Circuit  Court  for  the  Southern 
District  of  New  York,  because  the  cause  of  action  arose  in  the 
Northern  District  of  that  State,  may  be  taken  by  answer  as  well 
as  by  plea,  but  unless  raised  somewhere  in  the  pleadings 
will  be  waived.10  If  the  record  does  not  show  affirmatively 
that  the  court  has  jurisdiction,  the  case  may  be  dismissed  at  any 
time  after  as  well  as  before  judgment ;  and  the  objection  may  be 
taken  for  the  first  time  in  the  appellate  court.11  No  party  can 
offer  evidence  to  controvert  an  allegation  of  a  jurisdictional  fact 
in  a  pleading  or  petition  for  removal,  unless  he  has,  by  plea  or 
answer,  preferably  by  plea,  denied  such  allegation.12  Consent 
cannot  confer  jurisdiction  ;13  but  it  has  been  held  that  consent  may 
bind  the  parties  and  waive  a  previous  lack  of  jurisdiction,  if, 
when  the  attention  of  the  court  is  called  to  the  defect,  jurisdic- 
tion has  been  obtained.14     The  court  may  of  its  own  motion,  at 

5  Hartog  v.  Memory,  116   U.  S.  588,  n  Grace   v.  American  Central  Insur- 
590-502.  ance  Company,   109  U.  S.  278;  Bors  v. 

6  Hartog  v.  Memory,  116  U.   S.  588,  Preston,  111  U.  S.  252;  Mansfield.  C.  & 
590-592.  L.  M.  Ry.  Co.  v.  Swan,  111  U.  S.  379. 

7  Barry  v.  Edmunds,  110  U.   S.    550,  12  Hartog  v.  Memory,  116  U.  S.  588; 
559.  Davies  v.  Lathrop,  13  Fed.  R.  565  ;  Cuth- 

8  Pacific   Railroad    v.   Ketchum,    101  bert  v.  Galloway,  35  Fed.  R.  466. 

U.  S.  289,  299.  13  People's  Bank  v.  Calhoun,  102  U.  S. 

9  Harrison  v.  Urann,  1  Story,  64  ;  Pond    256. 

v.  Vermont  Valley  It.  R.  Co.,  12  Blatchf.        14  Pacific  Railroad    v.    Ketchum,    101 
280.  U.  S.  289,  298. 

w  Black  v.  Thorne,  10  Blatchf.  66. 


438      DISMISSING  BILLS  OTHERWISE  THAN  AT  A  HEARING.      [CHAP.  XX. 

any  time,  irrespective  of  the  pleadings,  direct  an  inquiry  as  to 
whether  the  jurisdictional  facts  exist.15  Upon  such  an  inquiry 
the  plaintiff  or  a  defendant  who  has  removed  the  case  is  entitled 
to  appear  by  counsel,  and  offer  evidence  in  support  of  the  juris- 
diction.16 No  judge  has  the  right  to  dismiss  a  suit  under  this 
statute  upon  his  personal  conviction,  however  strong,  unless  the 
facts  on  which  his  conviction  is  based  appear  upon  the  record, 
and  create  a  legal  certainty  of  the  conclusion  derived  from 
them.17  Where  a  plaintiff  had  acquired  the  causes  of  action 
which  he  sought  to  enforce,  solely  for  the  purpose  of  collection, 
in  the  Federal  courts,  under  an  agreement  to  pay  back  a  certain 
proportion  of  the  net  proceeds  to  his  assignors,  who  could  not 
have  sued  therein,  it  was  held  that  the  suits  should  be  dis- 
missed.18 When  after  all  the  pleadings  are  filed  in  a  suit  which 
was  brought  in  or  removed  to  a  Federal  court,  on  the  claim  that 
it  is  a  case  arising  under  the  Constitution  and  laws  of  the  United 
States,  it  appears  that  the  averments  upon  which  the  jurisdiction 
is  claimed  are  immaterial;  it  is  the  duty  of  the  court  to  dismiss  or 
remand  the  cause.19  To  justify  a  dismissal  under  this  statute, 
the  court  must  be  satisfied  that  the  object  was  to  create  a  case 
cognizable  in  the  Federal  courts.20  Where  a  collusive  transfer 
of  the  cause  of  action  was  evidently  made  for  another  purpose, 
it  was  held  that  the  jurisdiction  should  be  retained.21  Admis- 
sions by  the  defendant  after  a  suit  is  brought  cannot  by  reducing 
the  matter  in  dispute  divest  the  court  of  jurisdiction.22  A  dis- 
missal upon  this  ground  should  be  without  prejudice.23  A  motion 
to  dismiss  for  want  of  equity  can  only  be  made  at  a  hearing.24 
A  motion  to  dismiss  for  want  of  jurisdiction  of  the  Federal  court 
may  be  made  at  any  time.25 

»  Hartog  v.  Memory,  116  U.  S.  588 ;        29  Lanier  v.  Nash,  121  U.  S.  404,  410. 
Morris  ».  Gilmer,  129  U.  S.  315.  21  Lanier  v.  Nash,  121  U.  S.  404. 

is  Hartog  v.  Memory,  116  U.  S.   588,        22  Fuller  v.  Met.  Life  Ins.  Co.,  37  Fed.  R. 

590-592 ;  Barry  v.  Edmunds,  116  U.  S.  550.  163. 

17  Barry  v.  Edmunds,  116   U.  S.   550,        ^  Thompson  v.  Railroad  Companies,  6 
559.  Wall.  134  ;  Kendig  v.  Dean,  97  U.  S.  423  ; 

18  Farmington  v.  Pillsbury,  114  U.  S.  Van   Norden   ».   Morton,  99  U.  S.  378; 
138  ;  Williams  v.Nottawa,  104  U.  S.  209;  Williams  v.  Nottawa,  104  U.  S  209. 
Bernards  Township  v.  Stebbins,  109  U.  S.         24  La  Vega  v.  Lapsley,  1  Woods,  428  ; 
341 ;  New  Providence  v.  Halsey,  117  U.  S.  Betts  v.  Lewis,  19  How.  72. 

336  ;  Little  v.  Giles,  118  U.  S.  596 ;  Nor-  25  La  Vega  v.  Lapsley,  1   Woods,  428. 

ton  v    European  &  N.  Am.  Ry.  Co.,  32  But  see  Fuller  v.  Metropolitan  Life  Ins. 

Fed.  R.  865.  Co.,  31  Fed.  R.  696. 
w  Robinson  v.  Anderson.  121  U.  S.  522. 


§  295.]  ELECTION.  439 

§  294.  Dismissal  for  Failure  to  perfect  or  revive  a  Suit.  — 
When  a  suit  has  abated  or  become  otherwise  defective  before  a 
decree,  the  party  or  parties  against  whom  it  can  be  continued 
may,  upon  notice  served  upon  the  person  or  persons  entitled  to 
revive  or  supply  the  defect  in  the  same,  move  for  and  obtain 
an  order,  directing  that  these  revive  or  supply  the  defect,  within 
a  certain  limited  time  to  be  fixed  by  the  court,  or  that  else  the 
bill  be  dismissed.1  If  the  suit  abate  by  the  death  of  one  of 
several  co-plaintiffs,  the  order  may  be  obtained  against  the  sur- 
vivors; and  it  seems  that  the  objection  that  there  is  no  personal 
representative  of  the  deceased  plaintiff  will  not  prevent  the  court 
from  granting  such  an  order.2  It  is  irregular  in  such  cases  to 
move  to  dismiss  a  bill  for  want  of  prosecution  ;  and  an  order  to 
that  effect,  if  obtained,  will  be  discharged  for  irregularity.3 

§  295.  Election.  —  When  the  plaintiff  is  suing  both  at  law  and 
in  equity,  at  the  same  time,  for  the  same  matter,  the  defendant 
is  entitled  to  an  order  that  the  plaintiff  elect  whether  he  will 
proceed  in  equity  or  at  law.1  The  case  of  a  mortgagee  is  an 
exception  to  this  rule ;  for,  in  the  absence  of  any  statutory  re- 
striction, he  can  proceed  at  the  same  time  to  foreclose  his 
mortgage  in  equity  and  sue  on  the  bond  at  law.2  This  excep- 
tion, however,  it  has  been  held  in  England,  does  not  extend  to 
the  case  of  a  vendor  seeking  to  enforce  his  lien  and  sue  at  law 
for  his  debt.3  In  a  particular  case,  the  plaintiff  may  be  allowed 
to  proceed  partially  at  equity,  and  partially  at  law,  and  com- 
pelled to  make  a  special  election.4  The  principle  of  election  has 
been  extended  to  a  case  where  the  plaintiff  sued  at  once  in  both 
a  foreign  and  a  domestic  court.5  The  defendant  cannot  move 
for  the  order  until  after  he  has  answered,  and  the  time  for  ex- 
ceptions has  expired  without  one  being  taken,  or  the  answer  has 
been  adjudged  sufficient.6  A  joint  plea  and  answer  is  not,  it 
seems,  sufficient  to  enable  a  defendant  to  obtain  such  an  order.7 

§  204.   i  Arlamson  v.  Hall,  1  Turner  &  2  Booth  v.  Booth,  2  Atk.  343;  Dunkley 

Russ.  258;  Bolton  v.  Bolton,  2  Sim.  &  S.  v.  Van  Buren,  3  J.  Ch.  (N.  Y.)  330. 

371.  3  Barker  v.  Smark,  3  Beav.  64. 

8  Hinde  v.  Morton,  2  H.  &  M.  368.  *  Barker  v.  Dumaresque,  2  Atk.  119; 

8  Eobinson  v.  Norton,  10  Beav.  484;  Anon.,  1  Vern.  104;  Franklin  v.  Hersch, 

Boddy  v.  Kent,  1  Meriv.  361 ;   Sellers  v.  3  Tenn.  Ch.  467. 

Dawson,  2  Dickens,  738.  6  Pieters  v.  Thompson,  G.  Cooper,  201. 

§295.  l  Mitford'sPl.  (Tyler's  ed.)  340;  6  Mitford's  PI.  (Tyler's  ed.)  340;  Lei- 
Carlisle  v.  Cooper,  3  C.  E.  Green  (N.  J.)  cester  v.  Leicester,  10  Simons,  87. 
241 ;  Livingston  v.  Kane,  3  J.  Ch.  (N.  Y.)  '  Fisher  v.  Mee,  3  Meriv.  45  ;  Soule  v. 
224.  Corning,  11  Paige  (N.  Y.),  412. 


440      DISMISSING  BILLS  OTHERWISE  THAN  AT  A  HEARING.      [CHAP.  XX. 

The  order  should  allow  the  plaintiff  a  reasonable  time  within 
which  to  make  his  election.8  The  plaintiff  may  move  to  dis- 
charge the  order  for  irregularity  in  obtaining  it,  or  upon  the 
merits  confessed  in  the  answer  or  proved  in  an  affidavit.9  If, 
upon  such  a  motion,  any  doubt  arises  as  to  whether  the  suit  in 
equity  and  the  action  at  law  are  for  the  same  matter,  it  is  cus- 
tomary to  direct  an  inquiry  into  that  fact;10  during  the  progress  of 
which,  all  proceedings  in  both  courts  are  usually  stayed,11  unless 
the  plaintiff  can  show  that  justice  will  be  better  done  by  per- 
mitting proceedings  to  some  extent,  when  he  may  by  special 
leave  continue  in  one  or  both  at  the  court's  discretion.12  If  the 
plaintiff  require  further  time  within  which  to  make  his  election, 
he  should  apply  for  it  to  the  court  by  motion  upon  notice.13  At 
the  expiration  of  the  time  allowed  him  he  must  make  his  elec- 
tion, which  is  usually  done  by  riling  a  written  statement  of  it 
signed  by  him  or  his  solicitor  in  the  clerk's  office  ; 14  or  else  his 
bill  will  be  dismissed.15  If  he  elect  to  proceed  in  equity,  his 
proceedings  at  law  are  stayed  by  the  order,16  and  either  the 
defendant  will  be  allowed  to  recover  the  costs  of  the  action,  or 
the  plaintiff  will  be  directed  by  the  court  of  equity  to  pay 
them.17  If  the  plaintiff  elect  to  proceed  at  law,  his  bill  in  equity 
will  be  dismissed  with  costs.18  Such  a  dismissal  will,  however, 
be  no  bar  to  a  subsequent  suit.19 

8  Bracken   v.  Martin,  3  Yerg.  (Tenn.)  15  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  816; 
55  ;  Rogers  v.  Vosburgh,  4  J.  Ch.  (N.  Y.)  Boyd  v.  Heinzelman,  1  Ves.  &  B.  381. 
84.  i6  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  816. 

9  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  817.  17  Simpson  v.  Sadd,  16  C.  B.  26;  Car- 

10  Mouseley  v.  Basnett,   1    Ves.  &  B.     wick  v.  Young,  2  Swanst.  239. 

382  n.  18  Jones  v.  Earl  of  Strafford,  3  P.  Wins. 

11  Mills  v.  Fry,  3  Ves.  &  B.  9  ;  Anon.,  2     79,  90,  n.  B. 

Madd.  395 ;  Daniell's  Ch.  Pr.  817.  19  Countess  of  Plymouth  v.  Bladon,  2 

12  Amory    v.    Brodrick,    Jacob,    530  ;     Vern.  32  ;   Livingston  v.  Kane,  3  J.  Ch. 
Carwick  v.  Young,  2  Swanst.  239.  (N.  Y. )  224 ;  Rogers  v.  Vosburgh,  4  J.  Ch. 

13  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  817.       (N.  Y.)  84. 
w  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  817. 


§  297.]  MANNER  OF  HEARING  A  CAUSE.  441 


CHAPTER  XXI. 

THE   HEARING. 

§  296.  Bringing  a  Suit  to  a  Hearing.  —  The  old  practice  of  bring- 
ing a  suit  to  a  hearing  was  by  the  plaintiff's  procuring  an  order 
to  set  it  down  for  hearing  within  four  weeks  after  the  closing  of 
the  evidence  ;  upon  his  failure  to  do  which  a  defendant  might 
either  set  it  down  himself,  or  move  to  dismiss  the  bill  for  want 
of  prosecution.  The  party  setting  it  down  was  obliged  to  sue 
out  a  subpoena  to  hear  judgment,  and  have  the  same  served  upon 
the  solicitors  of  the  other  parties.1  If  a  plaintiff  wished  to  set  a 
cause  down  for  a  hearing  upon  bill  and  answer,  he  was  obliged 
to  do  so  within  the  time  allowed  him  for  filing  the  replication.2 
The  practice  upon  this  subject  in  the  United  States  courts  is, 
however,  very  loose,  — some  circuits  following  the  analogy  of  the 
English  practice  ;  some  regulating  the  matter  by  rule  ;  and  some 
adopting  by  custom  a  practice  very  similar  to  that  of  the  courts 
of  the  State  where  the  circuit  is  held.  Calendar  practice  in  the 
several  circuits  is  usually  modelled  on  the  State  practice  in  that 
respect.  If  an  original  and  a  cross  cause  have  been  set  down  for 
hearing  at  different  times,  and  other  causes  intervene,  the  plaintiff 
in  whichever  of  them  is  below  the  other  will  usually  upon  motion 
obtain  leave  to  bring  it  forward,  so  that  both  causes  may  be  heard 
together.3  A  hearing  will  not  be  given  upon  an  agreed  state- 
ment of  facts  without  pleadings.4 

§  297.  Manner  of  hearing  a  Cause.  — The  formal  mode  of  hearing 
a  cause  where  all  parties  appear  upon  its  being  called  on,  has  been 
thus  described.  "The  leading  counsel  for  the  plaintiff  opens 
the  plaintiff's  case,  and  in  so  doing  states,  first  the  bill,  and  then 
the  answers,  if  any :  pointing  out  the  matters  in  issue,  and  the 
questions  in  equity  arising  therefrom  ;  after  which  the  plaintiff's 

§206.  *  Daniell's  Ch.  Pr.  (5th  Am.  »  Hindc's  Pr.  415;  3  Blackstonc's  Corn- 
ed.) 963-971  ;  3  Bl.  Com.  450.  mentaries,  451. 

2  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  904,         4  Nickerson  v.  Atchison,  T.  &  S.  F.  R. 

965.  Co.,  30  Fed.  R.  85. 


442  THE   HEARING.  [CHAP.  XXL 

evidence  is  read,  either  by  his  leading  or  his  junior  counsel,  and 
their  arguments  in  support  of  the  case  are  adduced.  The 
counsel  for  the  defendant  are  then  heard,  in  support  of  the 
defendant's  case,  and  his  evidence  is  read  by  them  ;  and  the 
plaintiff's  senior  counsel  is  then  heard  in  reply.  When  all  are 
heard,  the  Court  pronounces  the  decree,  either  immediately  or 
at  a  subsequent  day." 1  It  is  usual  here,  however,  to  waive  the 
reading,  and  for  counsel  to  state  merely  the  substance  of  the 
pleadings  and  testimony,  which  are  submitted  to  the  judge  at,  or 
shortly  after,  the  conclusion  of  the  oral  arguments,  with  written 
arguments  upon  the  law  and  the  facts,  called  briefs  or  points. 
The  course  is  much  the  same  where  the  cause  is  set  down  for  a 
hearing  upon  bill  and  answer.  The  pleadings  only  are  then 
read,  and  the  answer  is  admitted  to  be  true  in  all  its  allegations 
of  fact,2  even  when  not  stated  positively,  and  the  defendant 
only  avers  that  he  believes  and  hopes  to  be  able  to  prove 
such  facts.3  But  the  plaintiff  does  not  thereby  admit  conclu- 
sions of  law,  nor  probably  allegations  as  to  matters  concerning 
which  the  court  takes  judicial  notice.4  No  other  evidence 
is  permitted  except  matters  of  record  to  which  the  answer 
refers.5  It  has  been  said  that  a  judge  may  hear  a  cause  in 
which  he  was  retained  before  he  received  his  judicial  appoint- 
ment ;6  but  the  almost  universal  practice  is  for  a  judge  to  refuse 
to  sit  in  such  a  case. 

§  298.  Rules  of  Decision  upon  a  Hearing.  —  All  decisions  made 
in  a  former  stage  of  the  cause  are  open  for  review  upon  the 
final  hearing.1  But  if  the  evidence  is  unchanged  a  judge  will 
rarely  refuse  to  follow  a  ruling  made  by  one  of  his  colleagues  in 
the  same  2  or  a  similar3  case.  Greater  respect  is  paid  to  a  ruling 
by  the  Circuit  Justice  than  to  one  by  the  Circuit  Judge  ;  4  and  a 
ruling  by  the  Circuit  Judge  has  more  weight  than  one  by  a 
District  Judge.     In  matters  of  substantive  as  distinguished  from 

§  297.  1  Daniell's  Ch.  Pr.  (5thAm.ed.)  §'298.    l  Fourniquet    v.    Perkins,    16 

1980.  How.  82 ;  Pulliam  v.  Pulliam,  10  Fed.  R. 

2  3  Bl.  Com.  1448 ;   Tainter  v.  Clark,     53. 

5  Allen  (Mass.),  66.  2  Cole  Silver  Mining  Co.  v.  Virginia  & 

3  Brinckerhoff    v.    Brown,    7  J.   Ch.  Gold  Hill  Water  Co.,  1  Saw.  685. 
(N.Y)217;  Dale  v.  McEvers,  2  Cowen         3  Worswick  Manuf.  Co.  v.  City  of  Phil- 
(N.  Y.),  118.  adelphia,  30  Fed.  R.  625. 

4  Taylor  v.  Barclay,  2  Simons.  213.  4  Preston  v.  Walsh,  10  Fed.  R.  315. 
6  Anon.,  1  Barb.  Ch.  (N.  Y.)  73. 

6  The  Richmond,  9  Fed.  R.  863,  and 
citations. 


§  298.]  RULES    OF   DECISION   UPON   A   HEARING.  443 

adjective  law,  that  is,  of  the  law  creating  rights  but  not  of  that 
merely  regulating  practice  ;  the  Federal  courts  are  —  certainly  so 
far  as  property  in  hind  is  affected  thereby,  and  probably  alto- 
gether—  bound  by  and  will  follow  the  statutes  of  the  State 
within  whose  jurisdiction  is  the  property  that  is  the  subject  of 
the  suit.5  A  State  statute,  however,  which  is  merely  declaratory 
of  the  law  cannot  affect  the  rules  applying  to  causes  of  action 
which  arose  before  its  enactment.6  Whether  a  State  statute  has 
been  properly  passed  so  as  to  take  effect,  is  a  question  of  law,  in 
determining  which  the  courts  of  the  United  States  will  follow 
the  decisions  in  the  State  wherein  it  is  claimed  to  be  in  force.7 
So,  too,  in  construing  a  statute  or  the  Constitution  of  a  State, 
the  Federal  courts  will  in  general  follow  the  construction  put 
upon  it  by  the  State  courts,  "  when  that  construction  has  been 
settled  by  the  decisions  of  its  highest  tribunal."  8  Even  if,  be- 
fore the  State  courts  have  construed  it,  a  State  statute  is  given 
one  construction  by  a  Federal  court,  and  subsequently  the 
highest  court  of  the  State  construes  it  differently  ;  or  if  the 
Federal  court  have  first  construed  it  in  ignorance  of  its  con- 
struction by  the  highest  tribunal  of  the  State:  —  the  Federal' 
courts  will,  in  all  subsequent  cases,  disregard  their  former  ruling 
and  follow  that  of  the  State  court.9  It  has  even  been  held  that 
the  Federal  courts  will  not  investigate  the  claim  that  the  decision 
of  the  State  court  was  obtained  by  collusion  between  the  parties 
to  the  case  in  which  it  was  obtained.10  The  courts  of  the  United 
States  are  not  bound  by  a  decision  of  a  State  court  construing 
a  statute  which  is  claimed  to  be  a  contract  by  the  State;  since 
otherwise  the  clause  in  the  national  Constitution  forbidding  a 
State  to  pass  a  law  impairing  the  obligations  of  contracts  might 
be  violated  with  impunity.11     And,  for  a  similar  reason,  if  differ- 

6  Watts  v.  Waddle,  6   Pet.  389 ;   Mc-  87 ;    Nesmith   v.  Sheldon,   7  How.  812 ; 

Goon   v.   Scales,  9  Wall.  23 ;    Gaines   v.  Walker  v.  State  Harbor  Commissioners, 

Fuentes,  92  U.  S.  10 ;  Brine  v.  Insurance  17  Wall.  648  ;  Township  of  Elmwood  v. 

Co.,  96  U.  S.  627  ;  Pulliam  v.  Pulliam,  10  Marcy,  92  U.  S.  289  ;  Township  of  East 

Fed.  K.  53,  77.    See  Chapter  XXVI.,  Sec-  Oakland  v.  Skinner,  94  U.  S.  255. 

tion  on  Rules  of    Decision  at   Common  9  Fairfield  v.  County  of  Gallatin,  100 

Law.  U.  S.  47. 

6  Town  of  Koshkonong  v.  Burton,  104  10  Township  of  East  Oakland  v.  Skin- 
U.  S.  668.  ner,  94  U.  S.  266. 

7  Town  of  South  Ottawa  v.  Perkins,  94  u  Jefferson  Branch  Bank  v.  Skelly,  1 
U.  S.  260  ;  Post  v.  Supervisors,  105  U.  S.  Black,  436.  See  Railroad  Co.  v.  Falconer, 
667.  103  U.  S.  821,  822. 

8  Polk's  Lessee  v.  Wendal,  9  Cranch, 


444  THE   HEARING.  [CHAP.  XXI. 

ent  constructions  have  been  given  to  the  same  statute  or  consti- 
tutional provision  by  the  courts  of  a  State  at  different  times,  the 
Federal  courts  are  not  "  bound  to  follow  the  later  decisions,  if 
thereby  contract  rights  which  have  accrued  under  earlier  rulings 
will  be  injuriously  affected."12  Otherwise,  said  Chief  Justice 
Taney,  "  the  provision  of  the  Constitution  of  the  United  States, 
which  secures  to  the  citizens  of  another  State  the  right  to  sue  in 
the  courts  of  the  United  States,  might  become  utterly  useless 
and  nugatory."  13  It  seems  that  the  Federal  courts  would  give 
to  a  right  established  by  a  well-recognized  local  custom  estab- 
lished and  acquiesced  in  within  a  State,  the  same  force  as  if  it 
had  been  created  by  a  State  statute.14  In  deciding  questions  of 
general  commercial  law,  however,  upon  which  the  statutes  of  a 
State  are  silent,  the  Federal  courts  are  not  bound  by  the 
decisions  of  the  State  courts,  but  decide  according  to  their  own 
views  of  what  the  law  is  and  should  be.15  But  in  one  case  where 
the  rule  of  the  Federal  was  different  from  that  of  the  State 
courts,  Judge  McCrary  followed  the  latter,  since  otherwise  there 
was  a  probability  that  a  party  to  the  suit  would  be  subjected  to 
a  double  payment.16 

§  299.  Objections  which  cannot  be  made  at  the  Hearing.  —  As 
the  provisions  of  the  equity  rules  and  the  other  regulations  of 
practice  are  chiefly  designed  to  facilitate  the  speedy  and  orderly 
progress  of  a  cause  to  a  hearing,  after  a  cause  has  been  brought 
to  a  hearing  it  is  a  general  rule  that  no  objections  as  to  form  or 
the  delay  in  taking  a  previous  proceeding  will  be  allowed  to  be 
taken  then  for  the  first  time.1  Thus,  the  rules  provide  that,  "  if 
a  defendant  shall,  at  the  hearing  of  a  cause,  object  that  a  suit  is 
defective  for  want  of  parties  not  having  by  plea  or  answer  taken 
the  objection,  and  therein  specified  by  name  or  description  the 
parties  to  whom  the  objection  applies,  the  court  (if  it  shall  think 
fit)  shall  be  at  liberty  to  make  a  decree  saving  the  rights  of  the 

12  Chief  Justice  Waite  in  Douglass  v.  15  Swift  v.  Tyson,  16  Pet.  1 ;  Carpenter 
County  of  Pike,  101  U.  S.  677,  686.  See  v.  The  Providence  Washington  Ins.  Co., 
also  Rowan  v.  Runnels,  5  How.  134  ;  Ohio  16  Pet.  495  ;  Oates  v.  National  Bank,  100 
Life  Ins.  and  Tr.  Co.  v.  Deholt,  16  How.  U.  S.  239 ;  Railroad  Company  v.  National 
416;  Gelpcke  v.  Dubuque,  1  Wall.  175;  Bank,  102  U.  S.  14;  Butler  v.  Douglass, 
Thompson  v.  Perrine,  103  U.  S.  806.  3  Fed.   R.   612.      See   Chapter  XXVI., 

13  Rowan  v.  Runnels,  5  How.  134.  Section  on  Rules  of   Decision  at  Com- 

14  Swift  v.  Tyson,  16  Pet.  1,  18 ;  Gaines  mon  Law. 

v.  Fuentes,  92  U.  S.  10 ;  Railroad  Co.  v.        16  Sonstiby  v.  Keeley,  7  Fed.  R.  447. 
National  Bank,  102   United   States,   14,         §  299.   *  Allen  v.  Mayor,  &c.  of  N.  Y., 
29.  18  Blatch.  239. 


§  300.]      ACTION  OF  THE  COURT  UPON  A  HEARING.         445 

absent  parties."2  "Where  the  defendant  shall,  by  his  answer, 
suggest  that  the  bill  is  defective  for  want  of  parties,  the  plaintiff 
shall  be  at  liberty,  within  fourteen  days  after  answer  filed,  to  set 
down  the  cause  for  argument  upon  that  objection  only ;  and  the 
purpose  for  which  the  same  is  so  set  down  shall  be  notified  by 
an  entry,  to  be  made  in  the  clerk's  order  book  in  the  form  or  to 
the  effect  following,  (that  is  to  say)  ;  '  Set  down  upon  the  de- 
fendant's objection  for  want  of  parties.'  And  where  the  plain- 
tiff shall  not  so  set  down  his  cause,  but  shall  proceed  therewith 
to  a  hearing,  notwithstanding  an  objection  for  want  of  parties 
taken  by  the  answer,  he  .shall  not,  at  the  hearing  of  the  cause,  if 
the  defendant's  objection  shall  then  be  allowed,  be  entitled  as  of 
course  to  an  order  for  liberty  to  amend  his  bill  by  adding  parties. 
But  the  court,  if  it  thinks  fit,  shall  be  at  liberty  to  dismiss  the 
bill."  3  An  amended  bill  filed  without  leave  upon  the  day  of  the 
hearing  may  be  disregarded  by  the  court.4  It  seems  that  a  plea 
stating  a  mere  conclusion  of  law  or  a  plea  unaccompanied  by 
the  proper  certificate  of  counsel  and  affidavit  of  the  defendant 
may  also  be  disregarded.5  Advantage  may,  however,  be  taken  of 
the  laches  of  the  plaintiff  by  a  defendant  who  has  not  pleaded  it.6 
And  the  objection  that  the  allegations  iu  the  bill  show  no  ground 
for  the  interference  of  a  court  of  equity  may  be  taken  at  any 
time.7 

§  300.  Action  of  the  Court  upon  a  Hearing.  —  The  court  may 
upon  the  hearing  of  a  cause  either  decide  all  the  questions  raised 
therein  and  make  a  final  decree,  or  merely  dispose  of  some  of 
them  and  give  directions  to  facilitate  the  decision  of  those  which 
remain.  If  the  court  inclines  in  favor  of  the  defendant,  it  will 
usually  render  a  final  decree  dismissing  the  bill.  The  dismissal 
may  be  absolute  or  without  prejudice.  An  absolute  decree  of 
dismissal  is  an  absolute  bar  to  any  subsequent  suit  brought  for 
the  same  cause.1  A  dismissal  without  prejudice  is  no  bar  to 
another  suit  brought  for  the  same  cause  of  action,  provided  that 
the  defects  on  account  of  which  the  bill  was  dismissed  are  rem- 
edied.2    A  dismissal  without  prejudice  is  usually  ordered  when 

2  Rule  53.  7  Baker  u.Biddle,  Baldwin,  394;  Quir- 

8  Rule  52.  olo  v.  Ardito,  1  Fed.  K.  tHO. 

4  Terry  v.  McLure,  103  United  States,  §  300.  1  Case  v.  Beauregard,  101  U.  S. 
442.  688. 

5  National  Bank  v.  Insurance  Co.,  104  2  Walden  v.  Bodley,  14  Pet.  156.  161  ; 
U.  S.  54.  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  994,  905 ; 

6  Baker  v.  Biddle,  Baldwin,  394.  Rosse  v.  Rust,  4  J.  Ch.  (N.  Y.)  300. 


446  THE   HEARING.  [CHAP.  XXI. 

a  bill  is  dismissed  for  want  of  parties,3  or  for  want  of  jurisdiction 
in  a  Federal  court,4  or  for  multifariousness,5  or  for  "a  slip  or  mis- 
take in  the  pleadings  or  in  the  proof."  6  If  on  the  other  hand 
the  court  inclines  in  favor  of  the  plaintiff,  unless  the  bill  pray 
merely  for  a  perpetual  injunction,  it  rarely  renders  a  final  decree 
at  the  first  hearing  of  the  cause.  It  often  directs  a  reference  to 
a  master  to  take  accounts  or  assess  damages ; 7  and  it  not  infre- 
quently gives  leave  to  either  party  to  apply  for  further  orders  or 
directions  "at  the  foot  of  the  decree"  which  it  orders  entered.8 
Under  such  a  clause  the  court  will  usually  listen  to  no  further 
applications,  except  as  to  matters  concerning  which  directions 
were  contained  in  the  decree  first  entered.8  Thus,  it  has  been 
held  that  it  will  not  under  such  a  clause  entertain  an  application 
to  set  aside  a  sale  made  under  a  decree.9  If  the  court  is  in 
doubt  concerning  the  facts,  it  may  direct  a  feigned  issue,  or  an 
action  at  law  or  a  reference  to  a  master,  to  aid  it  in  determining 
the  same.  In  one  case,  when  a  bill  had  been  filed  by  a  bond- 
holder praying  for  the  appointment  of  a  receiver  of  a  canal 
company,  the  court  at  the  hearing  denied  the  application  for  a 
receiver,  but  retained  the  bill  so  far  as  to  compel  the  corporation 
to  file  an  annual  account.10 

8  Kendig  v.  Dean,  97  U.  S.  423.  7  See  Chapter  XXIII. 

*  Hartell  v.  Tilghman,  99  U.  S.  547;  8  Legrand  v.  Whitehead,  1  Rubs.  309; 

Gaylords  v.  Kelshaw,  1  Wall.  81.  Wetmore  v.  St.  Paul  &  P.  R.  R.  Co.,  3 

5  Williams  v.  Jackson,  107  U.  S.  478,  Fed.  R.  177.     But  see  Hughes  v.  Jones, 

484.  3  De  G.  F.  &  J.  307. 

e  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  994,  9  Wetmore  v.  St.  Paul  &  P.  R.  R.  Co., 

995  ;    M'Neill   v.    Cahill,   2   Bligh,  228  ;  3  Fed.  R.  177. 

Woollam  v.  Hearn,  7  Ves.  211,  222  ;  Rosse  10  Stewart  v.  Chesapeake  &  Ohio  Canal 

v.  Rust,  4  J.  Ch.  (N.  Y.)   300.     But  see  Co.,  5  Fed.  R.  149. 
Ogsbury  v.  LaFarge,  2  N.  Y.  113;  and 
§291. 


§  301.]         POWER   OF   COURTS   TO   DIRECT   ISSUES   AT   LAW.  447 


CHAPTER   XXII. 

ISSUES  AT  LAW. 

§  301.  Power  of  Courts  to  direct  Issues  at  Law.  —  When  the 
chancellor  was  in  doubt  concerning  any  question  of  fact  arising 
in  the  cause,  the  evidence  in  regard  to  which  was  conflicting  or 
insufficient,1  it  was  his  custom  to  compel  its  trial  before  a  jury 
upon  a  feigned  issue  ;  and,  if  their  verdict  was  satisfactory  to 
him,  to  assume  the  truth  of  the  facts  established  by  the  same  as 
the  basis  of  his  decree.2  This  power  of  the  chancellor  is  also 
vested,  independently  of  an}'  special  statute,  in  all  the  courts  of 
the  United  States  which  have  equitable  jurisdiction  ;3  but  in  cases 
arising  under  the  patent  laws  it  has  been  increased  by  a  recent 
statutory  enactment,  providing  that  the  Circuit  Courts  of  the 
United  States,  "  when  sitting  in  equity  for  the  trial  of  patent 
causes,  may  impanel  a  jury  of  not  less  than  five  and  not  more 
than  twelve  persons,  subject  to  such  general  rules  in  the  prem- 
ises as  may  from  time  to  time  be  made  by  the  Supreme  Court,4 
and  submit  to  them  such  questions  of  fact  arising  in  such  cause 
as  such  circuit  court  shall  deem  expedient ;  and  the  verdict  of 
such  jury  shall  be  treated  and  proceeded  upon  in  the  same  man- 
ner and  with  the  same  effect  as  in  the  case  of  issues  sent  from 
chancery  to  a  court  of  law  and  returned  with  such  findings."  5 
The  court  may  at  any  time  decide  a  cause  without  a  trial  of  an 
issue  which  it  has  ordered,  and  even  without  revoking  its  previ- 
ous order  directing  one.6  The  order  of  a  judge  directing  an  issue 
at  law  is  discretionary,  and  it  is  doubtful  whether  or  not  it  may 
be  reviewed  upon  appeal.7     It  was  formerly  an  almost  invariable 

§  301.  l  Moons  v.  DeBernales,  1  Russ.  5  18  St.  at  L.  ch.  77,  p.  315;  1st  Supp. 

301 ;  Burkett  v.  Randall,  3  Mer.  466.  U.  S.  R.  S.  136;  Watt  v.  Starke,  101  U.  S. 

2  3  Bl.  Com.  452.  247. 

»  Harding  v.  Handy,  11  Wheat.  103;  6  Field  v.  Holland,  6  Cranch,  8;  Cook 

Goodyear  v.  Providence   Rubber  Co.,  2  v.  Bay,  4  How.  (Miss.)  485. 
Cliff.  351 1  Johnson  v.  Harmon,  94  U.  S.  7  See  Black  v.  Lamb,  1  Beasley  (N.J.), 

371,  378.  108  ;  Ward  v.  Hill,  4  Gray  (Mass.),  593; 

4  No   rules   upon   this   subject   have  Crittenden  v.  Field,  8  Gray  (Mass.),  621. 
hitherto  been  made. 


448 


ISSUES   AT   LAW. 


[CHAP.  XXII. 


custom  to  direct  an  issue  when  the  question  to  be  determined 
was  the  validity  of  a  will  as  against  an  heir,  or  the  true  heir-at- 
law  of  a  decedent,  or  the  right  of  a  rector  to  tithes.8  It  was 
very  common,  moreover,  when  an  allegation  in  a  sworn  answer, 
the  plaintiff  not  having  waived  answer  under  oath,  was  only 
controverted  by  the  testimony  of  a  single  witness  supported  by 
corroborating  circumstances ; 9  or  when,  by  determining  in  the 
way  he  inclined,  the  judge  would  find  a  person  guilty  of  forgery.10 
An  issue  may  be  directed  notwithstanding  a  report  of  auditors 
upon  the  facts.11  The  court  sometimes  directs  only  a  single 
issue,  and  sometimes  several,  according  to  the  number  of  sub- 
stantial points  upon  which  it  deems  it  necessary  to  take  the 
opinion  of  a  jury ;  and  it  will,  when  the  question  to  be  decided 
embraces  several  disputed  circumstances,  direct  an  issue  upon 
each  of  them.12  If  the  parties  cannot  agree  upon  the  form  of  an 
issue,  it  will  be  settled  either  by  the  judge  or  by  a  master,  as  the 
court  deems  most  expedient.13  By  going  to  trial  upon  an  issue 
neither  party  is  precluded  from  any  right  he  may  have  to  after- 
wards appeal  from  the  order  directing  it.14 

§  302.  Matters  concerning  which  an  Issue  is  directed  — No  party 
will  be  permitted  to  take  an  issue  in  a  different  form  from  that 
which  he  has  stated  in  his  pleadings  j1  but  the  court  may  upon  its 
own  motion  direct  an  issue  to  try  a  matter  not  in  issue  arising 
upon  the  hearing,  and  which  it  thinks  should  be  determined 
before  a  final  decree  is  rendered.2  An  issue  also  may  be  directed 
upon  claims  brought  in  under  a  decree  by  persons  not  upon  the 
record.3  An  issue  will  not,  however,  be  directed  to  establish  a 
point  which  a  party  set  up  in  his  pleading  but  omitted  in  his 
proof.4 


8  3  Bl.  Com.  452 ;  Lord  Fingal  v. 
Blake,  1  Molloy,  113  ;  Vaigneur  v.  Kirk, 
2  Desaus.  (S.  C.)  G40 ;  Williams  v.  Price, 
4  Price,  156, 160. 

9  Darnell's  Ch.  Pr.  ch.  xxvi.  §  1. 

10  Bishop  of  Winchester  v.  Fournier, 
2  Ves.  Sen.  445, 446  ;  Apthorp  v.  Comstock, 
2  Paige  (N.  Y.),  482.  But  see  Peake  v. 
Highfield,  1  Russ.  559. 

11  Field  v.  Holland,  6  Cranch,  8. 

12  Bryan  v.  Parker,  1  Younge  &  C.  170  ; 
Bailey  v.  Sewell,  1  Russ.  239;  Earl  of 
Newburgh  v.  Countess  of  Newburgh,  6 
Madd.  364. 


13  Daniell's  Ch.  Pr.  ch.  xxvi.  §  1. 

14  White  v.  Lisle,  3  Swanst.  342 ;  Legard 
v.  Daly,  1  Ves.  Sen.  192 ;  De  Tastet  v.  Bor- 
denave,  Jacob,  516. 

§  302.  !  St.  Paul's  v.  Kettle,  2  V.  &  B. 
1 ;  Bennett  v.  Neale,  Wightw.  324  ;  Sav- 
age v.  Carroll,  1  Ball  &  B.  548. 

2  Batch  v.  Tucker,  2  Ch.  Cas.  40. 

8  Price  v.  Price,  cited  in  2  Smith's  Ch. 
Pr.  76. 

4  Savage  v.  Carroll,  1  Ball  &  B.  548  ; 
Price  v.  Berrington,  3  Macn.  &  G.  486. 


§  304.]  MANNER   OF   TRYING   AN   ISSUE.  449 

§  303.  Time  when  an  Issue  is  directed.  —  According  to  the  old 
practice  an  issue  was  rarely  directed  before  the  original  hearing 
of  a  cause.1  Instances  have  occurred,  however,  when  this  has 
been  done  before  that  time  upon  motion,2  and  even  to  deter- 
mine the  facts  upon  a  motion  for  an  injunction  or  a  receiver, 
when  the  affidavits  for  or  against  the  motion  were  conflicting.3 
An  issue  has  been  often  granted  after  the  original  hearing  at  a 
hearing  for  further  directions;4  and  even  afterwards.5  It  has 
been  said  that,  in  the  Federal  courts,  an  order  for  an  issue  should 
not  be  made  until  all  the  proofs  have  been  taken  and  publica- 
tion has  passed.6  Under  the  statute  providing  for  the  direction 
of  issues  in  patent  causes,  it  would  seem  that  one  can  now 
be  directed  by  an  interlocutory  order  more  frequently  than 
formerly.7 

§  304.  Manner  of  trying  an  Issue.  —  The  manner  of  trying  a 
feigned  issue  is  thus  described  by  Blackstone.  "  But,  as  no  jury 
can  be  summoned  to  attend  this  court,  the  fact  is  usually  directed 
to  be  tried  at  the  bar  of  the  court  of  King's  bench,  or  at  the 
assizes  upon  a  feigy\ed  issue.  For  (in  order  to  bring  it  there, 
and  have  the  point  in  dispute,  and  that  only,  put  in  issue)  an 
action  is  brought,  wherein  the  plaintiff,  by  a  fiction,  declares 
that  he  laid  a  wager  of  51.  with  the  defendant  that  A  was  heir-at- 
law  to  B ;  and  then  avers  that  he  is  so ;  and  therefore  demands 
the  51.  The  defendant  admits  the  feigned  wager,  but  avers  that 
A  is  not  the  heir  to  B,  and  thereupon  that  issue  is  joined,  which 
is  directed  out  of  chancery  to  be  tried ;  and  thus  the  verdict  of 
the  juror  at  law  determines  the  fact  in  the  court  of  equity. 
These  feigned  issues  seem  borrowed  from  the  sponsio  judieialis 
of  the  Romans  :  and  are  also  frequently  used  in  the  courts  of 
law,  by  consent  of  the  parties,  to  determine  some  disputed  right 
without  the  formality  of  pleading,  and  thereby  to  save  much 
time  and  expense  in  the  decision  of  a  cause."  x  The  legal  fiction 
is,  however,  now  practically  out  of  use  ;  and  issues  are  tried  upon 

§  303.   i  Fullagar  v.  Clark,  18  Ves.  481.  5  Price  v.  Price,  cited  in  2  Smith's  Ch. 

2  Middleton  v.  Sherburne,  4  Y.  &  C.     Pr.  76. 

358;    Kent  v.  Burgess,  11  Simons,  361 ;  6  Goodyear  ?>.  Providence  Rubber  Co., 

Townley   v.   Deare,  3   Beav.  213  ;    Lan-  2  Fisher's  Pat.  Cas.  409. 

cashire  v.  Lancashire,  9  Beav.  259.  *  18  St.  at  L.  ch.  77,  p.  315;  1st  Supp. 

3  Gardiner  v.  Rowe,  4  Madd.  236 ;  De-  TJ.  S.  R.  S.  136. 

Tastet  v.  Bordenave,  Jacob,  516.  §  304.  •  3  Bl.  Com.  452. 

4  New   Orleans,  G.    L.   &  B.    Co.    v. 
Dudley,  8  Paige  (N  Y.),  452. 

29 


450  ISSUES   AT   LAW.  [CHAP.  XXII. 

the  common-law  side  of  a  Circuit  or  District  Court  frequently 
by  the  same  judge  that  directed  them.2  The  course  of  proceed- 
ing upon  the  trial  of  an  issue  is  substantially  the  same  as  that  in 
ordinary  trials  at  common  law,  unless  the  judge  who  directed  it 
has  given  special  directions  upon  the  subject.3  When,  however, 
a  will  is  sought  to  be  proved  against  an  heir-at-law,  at  the  suit  of 
a  devisee,  it  was  necessary  by  the  former  practice  to  prove  the 
execution  of  the  will  by  examining  all  the  witnesses  who  were 
alive  and  capable  of  giving  testimony.4  If  the  order  for  an 
issue  direct  that  a  number  of  witnesses  be  examined,  but  the 
plaintiff  declines  to  call  some,  the  judge  himself  will  call  and 
examine  the  rest.5  It  seems,  too,  that  the  jury  should  be  sworn 
in  the  words  of  the  order  of  issue.6  The  order  of  issue,  however, 
usually  contains  directions  as  to  admissions  to  be  made  and  doc- 
uments to  be  produced  by  the  parties.7  No  admission  of  any 
fact  not  clearly  admitted  by  the  pleadings  will,  however,  be 
required.8  If  such  directions  are  omitted  in  the  order  for  the 
issue,  they  may  be  obtained  afterwards  upon  motion.9  The  party 
upon  whom  the  burden  of  proof  rests,  whether  he  be  plaintiff  or 
defendant  in  the  original  suit,  is  directed  by  the  order  to  act  as 
plaintiff  in  the  issue.10  It  is  the  defendant's  duty  to  name  an 
attorney  to  appear  for  him  at  the  trial  of  the  issue.  If  he  fail  to 
do  so,  it  has  been  held  that  an  order  may  be  obtained  directing 
that  he  name  an  attorney  in  four  days,  or  else  that  the  issue  be 
taken  as  tried  and  a  verdict  given  for  the  plaintiff.11  The  decree 
or  order  for  the  issue  should  specify  a  time  when  it  is  to  be  tried.12 
If  the  plaintiff  make  default  in  having  the  case  ready  for  trial  at 
the  appointed  time,13  or  either  party  fail  then  to  appear,  the 
court  will  order  the  issue  taken  pro  confesso  against  him,  unless 
he  can  show  a  reasonable  ground  for  a  postponement.14   It  seems, 

2  See  Wilson  r.  Riddle,  123  U.  S.  608.       (N.  Y.),  482  ;  Cart  v.  Hodgkin,  3  Swanst. 

3  See  Kerr  v.  South  Park  Commission-     161. 

ers,  117  U.  S.  379 ;  Wilson  v.  Riddle,  123  8  Duke  of  Beaufort  v.  Morris,  2  Phil. 

U.  S.  608.  683. 

4  Townsend   v.  Ives,  1  Wilson,  216 ;  9  Marsh  v.  Sibbald,  2  V.  &  B.  375. 
Ogle  ».  Cook,  1  Ves.  Sen.  177  ;  Bullen  v.  10  Parker  v.  Morrell,  2  Phil.  453. 
Michel,  2  Price,  399  ;  Bootle  v.  Blundell,  u  Wilson  v.  Ginger,  2  Dick.  521  ;  Hart- 
19  Ves.  494.  land  v.  Dancocks,  5  De  G.  &  Sin.  561. 

5  Groom  v.  Chambers,  2  Mont.  &  Ayr.  12  DanielPs  Ch.  Pr.  ch.  xxvi.  §  1. 

742  "  Bearblock  v.  Tyler,  1  J  &  W.  225 ; 

6  Wilson  v.  Barnum,  1  Wall.  Jr.  342.  Casborne  v.  Barshnm,  5  M.  &  C.  113. 

7  Duke  of  Beaufort  v.  Morris,  2  Phil.  u  Casborne  u.Barsham,  5  M  &  C.  113; 
683  ;    Apthorp    v.    Comstock,    2    Paige  Ilargrave  v.  Ilargrave,  8  Beav.  2S9. 


§305.]      EFFECT   OF   THE   FINDING   OF  A   JUKY   UPON   AN   ISSUE.      451 

that  an  application  for  a  postponement,15  or  for  a  special  jury,  if 
one  be  desired,16  should  be  made  to  the  judge  who  directed  the 
issue.  A  person  interested  in  the  result  of  an  issue,  but  who 
refuses  to  be  a  party  to  it,  may  be  allowed  to  attend  the  trial  by 
counsel,  in  which  case  he  may  be  compelled  to  produce  docu- 
ments material  to  the  case  and  in  his  possession.17  After  the 
trial,  the  trial  judge  certifies  how  the  verdict  was  found,  but 
judgment  should  not  be  entered  upon  it.18  If  any  special  cir- 
cumstances have  occurred  at  the  trial  which  he  thinks  it  right  to 
report  to  the  court,  he  indorses  the  posted.10  He  may  also  furnish 
to  the  court  of  equity  a.  description  of  the  trial.20  An  irregu- 
larity or  omission  in  this  respect  may,  however,  be  corrected  or 
disregarded.21 

§  305.  Effect  of  the  Finding  of  a  Jury  upon  an  Issue.  —  "  The 
verdict  of  a  jury  upon  an  issue  out  of  chancery  is  only  advisory 
and  never  conclusive  upon  the  court.  It  is  intended  to  inform 
the  conscience  of  the  Chancellor.  It  may  be  disregarded,  and  a 
decree  rendered  contrary  to  it."1  If,  therefore,  either  party  be 
dissatisfied,  he  must  move  for  a  new  trial  on  the  equity  and  not 
on  the  common-law  side  of  the  court;2  "and  for  that  purpose 
the  party  applying  for  a  new  trial  must  procure  notes  of  tho 
proceedings  and  of  the  evidence  given  at  the  trial  for  the  use 
of  the  Chancellor.  This  is  done  either  by  moving  the  Chancel- 
lor to  send  to  the  judge  who  tried  the  issue,  for  his  notes  of  trial ; 
or  procuring  a  statement  of  the  same  in  some  other  proper  way. 
The  Chancellor  then  has  before  him  the  evidence  given  to  the 
jury,  and  the  proceedings  at  the  trial,  and  may  be  satisfied,  by 
an  examination  thereof,  that  the  verdict  ought  not  to  be  dis- 
turbed. The  evidence  and  proceedings  then  become  a  part  of 
the  record,  and  go  up  to  the  court  of  appeal  if  an  appeal  is 
taken."3  Unless  such  a  motion  is  made,  no  error  committed 
in  the  course  of  the  trial  of  the  issue   can  be  reviewed   upon 

ifi  Kebel  v.  Philpot,  9  Simons,  G14.  21  Wilson  v.  Riddle,  123  U.  S.  COS. 

"  Anon.,  2  P.  Wnis.  68.  §  305.    1  Mr.  Justice  Bradley  in  Watt 

"  Pindar  v.  Smith,  Mad.  &  Geld.  48.  v.  Starke,  101  U.  S.  247,  252.     See  also 

19  Kerr  v.  South  Park  Commissioners,  Basey  v.  Gallagher,  20  Wall.  G70 ;  Allen 

117  U.  S.  379.  v.  Blunt,  3  Story,  742,  7  10. 
19  White  v.  Lisle,  3  Swanst.  342  ;  Tren-  2  Watt  v.  Starke,  101  U.  S.  247,  250; 

ton  Ranking  Co.  v.  Rossell,  1  Green  Ch.  Johnson  v.  Harmon,  91  U.  S.  371.  378. 

(N.J.)   I'.!.  3  Mr.    Justice    Bradley    in    Watt    v. 

a>  Bassett    v.  Johnson,    1    Green    Ch.  Starke,  101  U.  S.  247, 250,  251.     See  also 

(N.  J.)  154.  Johnson  v.  Harmon,  94  U.  S.  371. 


452  ISSUES   AT   LAW.  [CHAP.  XXII. 

appeal.4  Such  an  application  should  be  made  by  motion  or  pe- 
tition before  the  cause  comes  on  for  hearing  upon  further  direc- 
tions.5 The  form  of  an  issue  cannot,  however,  be  changed  in  this 
manner.  A  party  desiring  to  alter  it  must  do  so  by  presenting  a 
petition  for  a  rehearing  of  the  decree  or  order  directing  it.6  The 
manner  in  which  the  verdict  is  reviewed  in  equity  is  thus  described 
by  Lord  Eldon  :  "  In  considering  whether,  in  such  a  case  as  this, 
the  verdict  ought  to  be  disturbed  by  a  new  trial,  allow  me  to  say 
that  this  court,  in  granting  or  refusing  new  trials,  proceeds  upon 
very  different  principles  from  those  of  a  court  of  law.  Issues  are 
directed  to  satisfy  the  judge,  which  judge  is  supposed,  after  he  is  in 
possession  of  all  that  passed  upon  the  trial,  to  know  all  that  passed 
there  ;  and  looking  at  the  depositions  in  the  cause,  and  the  pro- 
ceedings both  here  and  at  law,  he  is  to  see  whether,  on  the  whole, 
they  do  or  do  not  satisfy  him.  It  has  been  ruled  over  and  over 
again,  that  if,  on  the  trial  of  an  issue,  a  judge  reject  evidence  which 
ought  to  have  been  received,  or  receive  evidence  which  ought  to 
have  been  refused,  though  in  that  case  a  court  of  law  would  grant 
a  new  trial,  yet  if  this  court  is  satisfied,  that  if  the  evidence 
improperly  received  had  been  rejected,  or  the  evidence  improp- 
erly rejected  had  been  received,  the  verdict  ought  not  to  have 
been  different,  it  will  not  grant  a  new  trial  merely  upon  such 
grounds."7  The  usual  grounds  for  directing  a  new  trial  of  an 
issue  are,  "  1st,  the  alleged  improper  summing  up  of  the  judge ; 
2dly,  because  the  weight  of  evidence  is  against  the  verdict ; 
and  3dly,  because  of  an  informality  in  the  evidence."  8  Surprise 
and  fraud  are  also  reasons  for  granting  a  new  trial.9  When  the 
dispute  concerns  the  title  to  land,  in  imitation  of  courts  of  law 
two  trials  of  the  issue  have  often  been  granted,  when  the  first 
verdict  was  satisfactory  upon  the  evidence  ;10  and  sometimes  the 
court  has  directed  a  second  trial  for  the  solemn  determination  of 
the  matter,  without  setting  aside   the  first  verdict,  the  effect 

4  Brockett  v.  Brockett.  3  How.  091  ;  494  ;  Tatham  v.  Wright,  2  Russ.  &  M.  1 ; 
Johnson  v.  Harmon,  94  U.  S.  371  ;  Watt     "Watt  v.  Starke.  101  U.  S.  247,  252. 

v.  Starke,  101  U.  S.  247.  8  Smith's  Ch.  Pr.  (Fhila.  ed.)  vol.  ii. 

5  Attornev-General  v.  Montgomery,  2  p.  84.  See  also  Tatham  v.  Wright,  2 
Atk.  378  ;  Van  Alst  v.  Hunter,  5  J.  Ch.  Russ.  &  M.  1  ;  Watt  v.  Starke,  101  U.  S. 
(N.  Y.)  148,  152.  247,  253. 

6  Daniell's  Ch.  Pr.  (3d  American  ed.)  9  Exton  v.  Turner,  2  Ch.  Cas.  80;  Stan- 
U14,  den  v.  Edwards,  1  Ves.  Jr.  133. 

7  Lord  Eldon  in  Barker  v.  Ray,  2  Russ.  10  Earl  of  Darlington  v.  Bowes,  1  Eden, 
63.     See  also  Bootle  v.  Blundeil,  19  Ves.  271 ;  Stace  v.  Mabbot,  2  Ves.  Sen.  552. 


§  300.]  PROCEEDINGS   AFTER   THE   TRIAL   OF   AN   ISSUE.  453 

of  which  was  that  the  first  verdict  was  admitted  in  evidence 
upon  the  second  trial,  and  had  its  weight  with  the  jury.11  In 
such  case,  the  court  usually  made  it  a  condition  of  granting  a 
second  trial,  that  the  applicant  should  pay  to  the  other  party  the 
costs  of  the  first.12 

§  306.  Proceedings  after  the  Trial  of  an  Issue.  —  After  the  trial 
of  an  issue  and  the  completion  of  the  record  by  the  addition  of 
the  postea,  the  cause,  unless  a  new  trial  is  obtained,  should  be 
set  down  for  hearing.1  This  may  be  done  in  the  usual  manner; 
but  it  seems,  not  before  the  expiration  of  the  first  four  days  of 
the  term  following  the  trial,  in  order  that  the  party  against 
whom  the  verdict  has  been  found  may  have  an  opportunity  of 
moving  for  a  new  trial.2  The  cause  then  comes  on  in  the  regular 
course,  when  such  final  or  other  decree  as  is  proper  is  pronounced. 
The  costs  of  an  issue  do  not  follow  the  verdict  as  a  matter  of 
course,  but  are  in  the  discretion  of  the  court  which  directed  the 
issue;3  though  they  are  usually  given  to  the  party  in  whose  favor 
the  verdict  was  rendered.4  In  one  case  the  court  ordered  an 
advance  out  of  a  fund  in  its  possession,  in  order  to  enable  the 
parties  to  try  an  issue  directed  by  it.5 

«  Baker  v.  Hart,  3  Atk.  542.  3  Decker  u.  Caskey,  2  Green  Ch.  (N.  J.) 

12  Baker  <•.  Hart,  3  Atk.  542  ;  Edwin  v.  446. 

Thomas,  1  Vern.  483.  *  Corporation  of  Rochester  v.  Lee,  2 

§  300.'  i  Allen  v.  Blunt,  3  Story,  742 ;  De  G.  M.  G.  427. 

Daniell'a  Ch.  Pr.  ch.  xxvi.  5  Coouibs  v.  Brooks,  3  DeG.  &  S.  452. 
2  1  Nevvland's  Ch.  Pr.  357. 


454  PROCEEDINGS   IN   A   MASTER'S   OFFICE.        [CHAP.  XXIII. 


CHAPTER   XXIII. 

PROCEEDINGS   IN   A   MASTER'S   OFFICE. 

§  307.  References  to  Masters  in  General. —  The  labors  of  a  judge 
of  a  court  of  equity  are  often  materially  lightened  by  referring 
the  consideration  of  matters  of  fact  to  a  master  in  chancery,  who 
is  directed  by  it  to  investigate  the  same  and  report  his  opinion 
thereon  to  the  court.  Certain  ministerial  acts  which  a  court  of 
equity  undertakes  are  also  performed  by  it  through  a  master. 
The  matters  which  are  ordinarily  referred  to  masters  in  chancery 
are  inquiries,  as  to  whether  pleadings  or  other  proceedings  in  a 
suit  in  equity  contain  impertinence  or  scandal ;  as  to  who  are 
the  heirs,  next  of  kin,  creditors,  or  members  of  a  particular  class 
of  legatees  of  a  person  whose  estate  is  in  the  hands  of  the  court 
for  distribution  ;  as  to  whether  the  title  to  real  estate  is  good  ; 
and  as  to  the  state  of  the  law  of  a  foreign  country;  as  to  whether 
one  of  two  books  or  other  publications  is  pirated  from  the  other ; 
or  as  to  the  amount  of  damage  suffered  by  the  granting  or  with- 
holding of  an  injunction  ;  the  taking  of  accounts  ;  the  compu- 
tation of  interest  ;  the  settlement  of  conveyances,  and  other 
deeds  ;  the  selling  of  property  ;  the  appointment  of  trustees, 
receivers,  and  guardians  ;  and  the  superintendence  of  the  per- 
formance of  their  duties  by  receivers.  The  extent  of  a  master's 
authority  is  limited  by  the  decree  or  order  appointing  him  ; 1  and 
it  has  been  said  that  it  cannot  be  extended  even  by  consent.2 
The  rules  provide  that  "every  decree  for  an  account  of  the 
personal  estate  of  a  testator  or  intestate  shall  contain  a  direction 
to  the  master  to  whom  it  is  referred  to  take  the  same  to  inquire 
and  state  to  the  court  what  parts,  if  any,  of  such  personal  estate 
are  outstanding  undisposed  of,  unless  the  court  shall  otherwise 
direct."  3 

§  307.  1  Lonsdale  Co.  v.  Moies,  2  Cliff.  R.  R.  of  Iowa,  2  Fed.  R.  656 ;  Gordon  v. 
538.  Hobart,  2  Story,  243. 

2  Farmers'   L.  &   Tr.   Co.   v.  Central  3  Rule  73. 


§  309.]  BRINGING    ON    A   REFERENCE.  455 

§  308.  Who  may  be  appointed  Master.  —  The  Circuit  Courts, 
"both  the  judges  concurring  in  the  appointment,"  have  the  power 
to  appoint  standing  masters  in  chancery  in  their  respective  dis- 
tricts.1 A  Circuit  Court  may  also  appoint  a  master  pro  hac  vice 
in  any  particular  case.2  A  recent  statute  provides  that  "no 
clerk  of  the  district  or  circuit  courts  of  the  United  States,  or 
their  deputies,  shall  be  appointed  a  receiver  or  master  in  any  case. 
except  where  a  judge  of  said  court  shall  determine  that  special 
reasons  exist  therefor,  to  be  assigned  in  the  order  of  appoint- 
ment."3 It  has  been  held  at  circuit  that  this  statutory  prohibi- 
tion is  for  the  benefit  of  the  parties  to  the  litigation,  and  may  be 
waived  by  their  consent  to  an  order  appointing  such  an  officer 
master  in  a  particular  case  ;  and  that  after  such  an  order  or 
decree  has  thus  been  entered  and  the  parties  have  proceeded 
before  the  master,  it  may  be  amended  by  the  insertion  of  a  clause 
stating  that  the  court  has  determined  "  that  such  consent  is  a 
sufficient  special  reason  for  such  appointment."4  Another  stat- 
ute provides  that  "no  person  related  to  any  justice  or  judge  of 
any  court  of  the  United  States  by  affinity  or  consanguinity, 
within  the  degree  of  first  cousin,  shall  hereafter  be  appointed 
by  such  court  or  judge  to  be  employed  by  such  court  or  judge 
in  any  office  or  duty  in  any  court  of  which  such  justice  or  judge 
may  be  a  member."  5 

§  309.  Bringing  on  a  Reference.  —  The  rules  provide  that, 
whenever  a  reference  is  made,  the  party  at  whose  instance  or  for 
whose  benefit  it  was  directed  must  bring  the  same  to  a  hearing 
on  or  before  the  rule-day  next  succeeding  the  date  of  the  order 
for  a  reference.1  Otherwise,  the  adverse  party  may  forthwith 
cause  proceedings  to  be  had  before  the  master  at  the  costs  of  the 
party  who  procured  the  reference.2  The  master  need  not  report 
evidence  unless  required  by  either  party.3  It  is  the  master's 
duty,  as  soon  as  he  reasonably  can  after  the  matter  referred  to 
him  is  brought  before  him,  to  assign  a  time  and  place  for  pro- 
ceeding, and  to  give  due  notice  thereof  to  each  of  the  parties,  or 
their  solicitors.4    Notice  may  be  served  by  mail  or  otherwise.5    It 

§  308.   1  Rule  82.  2  Rule  82.  8  Union  Supar  Refinery  v.  Mathiesson, 

»  20  St.  at  L.  ch.  18.°.,  p.  415.  3   Cliff.   146,  149.      Sir   Kerosene   Lamp 

*  Fischer  v.  Hayes,  22  Fed.  R.  92.  Heater  Co.  v.  Fisher,  1  Fed.  R.  91. 

6  U.  8.  St.  at  L.  p.  552,  ch.  373,  §  7.  4  Rule  75. 

§309.  l  Mule  74.  6  Kerosene  Lamp  Heater  Co  v.  Fisher, 

2  Kuie  74.  1  Fed.  R.  91. 


456  PEOCEEDINGS   IN   A   MASTER'S   OFFICE.        [CHAP.  XXIII. 

need  not  be  served  by  the  marshal.6  By  the  old  English  practice 
parties  interested  in  the  subject-matter  of  a  reference  were  brought 
before  the  court  by  the  service  of  a  warrant.  This  was  a  memo- 
ran  (him,  upon  a  slip  of  paper  entitled  in  the  cause,  and  signed  by 
the  master,  appointing  a  day  and  hour  for  all  parties  concerned  to 
attend  him  on  the  matter  of  the  reference.7  It  was  in  substan- 
tially the  following  form :  "  By  virtue  of  an  order  of  reference, 
I  do  appoint  to  consider  the  matters  thereby  to  me  referred,  on 
next,  at of  the  clock,  in  the noon,  at  my  Cham- 
bers in ,  at  which  time  and  place  all  parties  concerned  are 

to  attend.     [Signature.]     Dated  the  day  of  ,  ."  8 

It  is  a  better  practice,  however,  for  the  warrant  to  contain  a  state- 
ment of  the  nature  of  the  reference.9  This  warrant  is  often  called 
a  "summons."10  There  was  required  to  be  at  least  one  clear  day 
between  the  day  of  issuing  the  warrant  and  the  day  appointed 
by  it  for  the  attendance  of  the  parties  thereon.11  The  warrant 
was  obtained  from  the  master's  clerk  by  the  solicitor  applying 
for  it;  and  the  latter  underwrote  a  memorandum  expressing  its 
object,  and  saw  that  dne  service  of  it  was  made.12  Whenever 
a  document  of  any  kind  was  left  at  the  master's  office  by  the 
solicitor  of  either  of  the  parties,  he  usually  took  out  a  warrant, 
which  he  underwrote,  "  on  leaving  the,"  &c.13  This  was  termed 
a  "  warrant  on  leaving,"  and  was  served  in  the  usual  manner, 
but  was  considered  a  mere  formal  notice,  to  afford  the  opposite 
party  an  opportunity  of  obtaining  a  copy  of  the  document  left 
that  he  might  either  admit  or  contest  the  circumstances  there 
stated,  as  he  might  be  advised.14 

§  310.  Parties  entitled  to  attend  a  Reference  before  a  Master.  — 
The  general  rule  appears  to  be,  that  all  parties  beneficially  inter- 
ested, either  in  the  estate  or  in  the  fund  or  matter  in  question, 
are  entitled  to  attend  before  the  master  on  all  those  proceedings 
which  may  affect  their  interests,  or  increase  or  diminish  their 
proportion  in  the  fund.1  The  only  exception  to  this  rule  is  said 
to  be  the  case  of  a  reference  to  a  master  of  the  title  to  an  estate 

0  Kerosene  Lamp  Heater  Co.  r.  Fisher,         n  1   Newland's   Chan.   Pr.   324.      See 

1  Fed.  R.  91.  Bernie  v.  Vandever,  16  Ark.  616. 

7  Darnell's  Ch.  Pr.  ch.  xxvi.  12  Daniell's  Ch.  Pr.  oh.  xxvi. 

8  Daniell's  Ch.  Pr.  ch.  xxvi.  13  Daniell's  Ch.  Pr.  ch.  xxvi. 

9  Manhattan  Co.  v.  Evertson,  4  Paige,  14  Daniell's  Ch.  Pr.  ch.  xxvi.  See  Ma n- 
(N.  Y.)  276.  hattan  Co.  v. Evertson, 4  Paige  (N.Y.),  276. 

10  Manhattan  Co.  v.  Evertson,  4  Paige,  §  310.  1  Daniell's  Ch.  Pr.  ch.  xxvi 
(N.  Y.)  276.  See  Johnson  v.  Waters,  111  U.  S.  640. 


§  311.]  PROCEEDINGS    BEFORE    A   MASTER   IN    GENERAL.  457 

purchased  under  a  decree,  when  the  vendor's  solicitor  only  has 
the  right  to  appear  before  the  master  on  the  inquiry.2  An  exec- 
utor, as  the  legal  representative  of  his  testator,  is  entitled  to 
attend  on  all  proceedings  relating  to  the  charges  of  creditors 
seeking  payment  out  of  the  personal  estate;  but  after  there  has 
been  a  report  of  debts,  if  all  the  persons  interested  in  the  per- 
sonal estate  are  before  the  court  the  executor  is  only  entitled  to 
attend  on  those  proceedings  in  which  he  is  personally  interested 
as  an  accounting  party.3  Trustees  were  formerly  not  allowed 
(except  in  proceedings  carried  on  by  themselves)  to  attend 
before  the  master  in  cases  where  all  the  beneficiaries  were  before 
the  court;  but  if  there  were  any  persons  hi  esse,  or  who  might 
"  come  into  esse"  who  might  become  interested  and  whose  in- 
terests were  only  represented  by  the  trustees,  and  were  not  too 
remote,  the  trustees  were  entitled  to  attend  the  proceedings 
affecting  those  interests.4  The  rule  that  all  parties  interested 
in  the  result  are  entitled  to  attend  before  the  master  applies  not 
only  to  those  who  are  parties  to  the  record,  but  to  those  who  are 
"quasi  parties,"  by  having  come  in  under  the  decree  and  estab- 
lished a  claim.5  A  party  who  has  appeared,  but  allowed  a  decree 
to  be  taken  against  him  by  default  for  want  of  an  answer,  is,  it 
seems,  entitled  to  notice  of  the  proceedings  against  him  under 
the  decree  in  the  master's  office  ;6  but  cannot  appear  upon  such 
notice  before  the  master  without  previously  obtaining  an  order 
for  that  purpose,  which  is  usually  only  granted  upon  terms.7 
The  proper  course  to  test  a  party's  right  to  attend  before 
a  master  is,  after  the  latter' s  refusal,  to  apply  to  the  court  by 
petition  for  an  order  permitting  the  party  to  attend  before 
him.8 

§  311.  Proceedings  before  a  Master  in  General.  —  The  rules 
give  the  master  authority  to  regulate  all  the  proceedings  upon 
a  reference  to  him.1  In  case  of  an  abuse  of  his  discretion  by  a 
master,  any  party  aggrieved  may  apply  to  the  court  for  an  order, 
requiring  the  master  to  act  properly  ;2  but  such  applications  are 

2  Daniell's  Ch.  Pr.  ch.  xxvi.  8  Daniell's  Ch.  Pr.  ch.  xxvi. 

8  Daniell's  Ch.  Pr.  ch.  xxvi.  §  311.   *  Rule  77. 

4  Daniell's  Ch.  Pr.  ch.  xxvi.  -  Daniell's  Ch.  Pr.  ch.  xxvi ;   Bate  Re- 

6  Daniell's  Ch.  Pr.  ch.  xxvi.  frigerating:  Co.  v.  Gillette,  28  Fed.  R.  673  ; 

6  King  v.  Bryant.  3  M.  &  C.  191 ;  Dan-  Rule  75.  See  Re  Thomas,  35  Fed.  R. 
iell's  Ch.  Pr.  ch.  xxvi.  337,  340. 

7  Heyn  v.  Heyn,  Jacob,  49  ;  Daniell's 
Ch.  Pr.  ch.  xxvi. 


458 


PROCEEDINGS   IN   A   MASTER'S    OFFICE.        [CHAP.  XXIII. 


not  encouraged,3  and  are  only  granted  in  extraordinary  cases.4 
If  any  party  fail  to  appear  at  the  appointed  time  and  place,  the 
master  may  either  proceed  ex  parte,  or,  in  his  discretion,  may 
adjourn  the  proceedings.5  In  the  latter  case,  he  should  give  notice 
of  the  adjournment  to  the  party  who  failed  to  appear,  or  to  his 
solicitor.6  It  is  the  master's  duty  to  proceed  in  the  reference 
with  all  reasonable  diligence  and  with  the  least  practicable 
delay.7  Otherwise,  either  party  may  apply  to  the  court  or  a  judge 
thereof,  for  an  order  requiring  the  master  to  speed  the  proceed- 
ings and  to  make  his  report,  and  to  certify  to  the  court  or  judge  the 
reasons  for  any  delay.8  There  is  no  necessity  for  the  master's  tak- 
ing any  oath,  unless  the  order  of  reference  especially  requires  him 
to  do  so.9  All  parties  who  are  required  to  account  before  a  master 
must  bring  in  their  accounts  in  the  form  of  debtor  and  creditor.10 
Should  a  party  fail  to  do  so,  the  master  may  make  an  order 
requiring  him  to  furnish  such  an  account.11  The  order  should 
not  be  granted  till  the  first  hearing  of  the  reference.12  The  order 
must  be  served  personally  with  a  copy  of  this  order  and  a  notice 
of  the  day  to  which  the  hearing  is  adjourned.13  Service  may  be 
made  by  any  disinterested  person.1*  If  the  defendant  then  fails 
to  appear  and  account,  he  is  in  contempt.15  If  any  of  the  other 
parties  is  dissatisfied  with  the  accounts  rendered,  he  may  exam- 
ine the  accounting  party  either  orally  or  by  interrogatories  or  by 
deposition,  as  the  master  directs.16  By  the  English  practice,  the 
time  for  a  single  hearing  before  a  master  did  not  usually  exceed 
one  hour,  unless  the  master  continued  the  hearing  longer,  when 
an  increased  fee  might,  it  seems,  be  charged.17  It  was  the  duty 
of  the  master  or  his  clerk  to  mark  in  the  master's  book  the 
names  of  the  solicitors  who  attended,  and  no  other  attendance 
than  those  so  marked  was  allowed  in   taxing  costs.18      In  the 


3  Lull  v.  Clark,  20  Fed.  R.  454  ;  Woos- 
ter  v.  Gumbirnner,  20  Fed.  R.  167 ;  Bate 
Refrigerating  Co.  v.  Gillette,  28  Fed.  R. 
673. 

4  Lull  v.  Clark,  20  Fed.  R.  454;  Wooster 
v.  Gumbirnner,  20  Fed.  R.  167  ;  Bate  Re- 
frigerating Co.  v.  Gillette,  28  Fed.  R.  673. 

5  Rule  75. 

6  Rule  75. 
1  Rule  75. 

8  Rule  75. 

9  Thompson  v.  Smith,  2  Bond,  320. 
if  Rule  79. 


11  Kerosene      Lamp     Heater 
Fisher,  1  Fed.  R.  91. 

12  Kerosene      Lamp     Heater 
Fisher,  1  Fed.  R.  91. 

13  Kerosene      Lamp 
Fisher,  1  Fed.  R.  91. 

14  Kerosene      Lamp 
Fisher,  1  Fed.  R.  91. 

15  Kerosene      Lamp 
Fisher,  1  Fed.  R.  91. 

i6  Rule  79. 

tt  Daniell's  Ch.  Pr.  ch.  xxvi 

13  Daniell's  Ch.  Pr.  ch.  xxvi 


Co. 


Co. 


Heater  Co.  v. 


Heater  Co.  v. 
Heater  Co.  v. 


§  312.]  A  STATE  OF  FACTS.  459 

Southern  District  of  New  York,  a  master  is  forbidden  to  adjourn 
a  reference  for  more  than  ten  days  without  the  written  consent 
of  all  the  parties  or  the  authorization  of  one  of  the  judges.19 

§  312.  A  state  of  Facts.  —  By  the  English  practice  a  party 
who  intended  to  examine  witnesses  before  a  master  under  a 
decree  was  obliged  to  carry  in  a  state  of  facts  detailing  the  cir- 
cumstances which  he  desired  to  prove.1  This  was  also  the  general 
form  by  which  the  prosecution  of  every  reference  to  a  master 
was  commenced.2  "A  state  of  facts,  as  its  name  imports,  is  a 
statement  in  writing,  made  by  a  party  who  wishes  to  prosecute 
or  resist  any  inquiry  before  a  master,  of  the  facts  and  circum- 
stances upon  which  he  relies,  either  in  support  of  his  own  cause, 
or  in  contradiction  or  defeasance  of  that  of  his  adversary.  It 
is,  in  effect,  the  pleading  of  the  party  before  the  master,  and  is 
governed  by  nearly  the  same  rules  and  principles  as  pleadings  in 
the  Court,  although,  not  being  signed,  nor,  in  general,  prepared 
by  counsel,  they  are  not  always  so  strictly  observed.  A  state 
of  facts,  however,  must  be  pertinent  to  the  matter,  and  must 
not,  any  more  than  any  other  proceeding  in  the  cause,  contain 
any  scandal,  and  if  it  is  either  scandalous  or  impertinent,  the 
scandalous  or  impertinent  matter  may  be  expunged,  in  the  man- 
ner which  will  be  presently  pointed  out.  A  state  of  facts  is 
intituled  in  the  cause,  and  contains  a  detail  of  the  facts  and 
circumstances  intended  to  be  relied  upon  by  the  party  :  when 
the  party  carrying  in  the  state  of  facts,  makes  any  claim  upon  the 
fund  in  Court,  it  is  usual  to  conclude  the  statement  with  the  par- 
ticulars of  the  claim,  in  the  manner  of  a  prayer  for  relief  to  the 
bill,  as  follows: — 'And  the  said  A.  B.,  therefore,  claims,  &c.,' 
in  such  case  the  proceeding  is  called  '  a  state  of  facts  and  claims.' 
When  the  object  of  the  party  is  to  charge  another  with  the 
receipt  of  money,  &c,  the  state  of  facts  concludes  with  a  charge 
in  the  following  form  :  — '  and  the  said  A.  B.,  therefore,  charges, 
&c.,'  in  such  case  the  proceeding  is  called  '  a  state  of  facts  and 
charge.'  It  may  be  remarked,  that  a  charge  is  not  always  pre- 
ceded by  a  state  of  facts,  but  if  the  matter  appears  from  any 
admissions  in  any  account,  or  examination  or  proceeding  in  the 
master's  office,  and  requires  no  other  proof  in  support  of  it,  it  is 
usual  to  make  '  a  charge '  only.      When  a  state  of  facts  is  pre- 

19  Rule   115  of  United  States  C.   C,         §  312.   i  Daniell's  Ch.  Pr.  eh.  xxvi. 
S.  D.  N.  Y.  a  Darnell's  Ch.  Pr.  ch.  xxvi. 


460  PROCEEDINGS   IN   A   MASTER'S    OFFICE.        [CHAP.  XXIII. 

pared,  it  is  carried  in  to  the  master's  office  and  a  warrant  '  on 
leaving'  must  be  served  upon  the  other  parties,  who  may  then 
apply  for  and  obtain  copies  from  the  master's  clerk,  and  if  they 
have  a  counter  state  of  facts  to  leave,  they  must  proceed  in  the 
same  manner.  It  is  usual  to  add  to  a  state  of  facts,  a  sort  of 
petition,  that  the  party  may  be  at  liberty  to  add  to,  alter,  or  vary 
the  state  of  facts,  as  he  may  be  advised  ;  and  it  is  presumed,  that 
such  form  was  originally  considered  necessary,  to  enable  the 
party  to  amend  his  state  of  facts,  after  it  has  been  delivered  in. 
It  is,  however,  now  an  unnecessary  form,  as  a  state  of  facts  may 
be  amended  at  any  time,  or  a  further  state  of  facts  carried  in, 
upon  leaving  which,  a  warrant,  '  on  leaving,'  should  be  taken 
out  and  served,  as  when  an  original  state  of  facts  is  left."  3 

§  313.  Evidence  before  a  Master.  —  "  All  affidavits,  depositions, 
and  documents  which  have  been  previously  made,  read,  or  used 
in  the  court  upon  any  proceedings  in  any  cause  or  matter  may 
be  used  before  the  master."1  These  should,  however,  be  regu- 
larly offered  in  evidence,  so  that  the  other  party  may  have  an 
opportunity  to  explain  or  rebut  them.2  Otherwise,  they  cannot  be 
referred  to  upon  the  argument,  or  used  in  support  of  the  report.3 
The  master  has  power  to  examine  under  oath  the  parties  in  the 
cause,  and  any  witnesses  produced  by  them,4  and  any  creditor 
or  other  person  coming  in  to  claim  before  him.5  The  evidence 
should  be  taken  down  in  writing  by  the  master,  or  some  one 
in  his  presence,  so  that  the  court  may  use  the  same.6  Witnesses 
who  live  in  the  district  may,  upon  due  notice  to  the  opposite 
party,  be  summoned  to  appear  before  a  master,  by  a  subpoena 
issued  from  the  clerk's  office  in  blank  and  filled  by  the  party 
applying  for  the  same,  or  by  the  master,  requiring  the  attendance 
of  the  witnesses  at  a  time  and  place  therein  specified.7  Such 
witnesses  are  entitled  to  the  same  compensation  as  for  attend- 
ance in  court,8  A  refusal  to  appear  in  obedience  to  such  a 
subpoena  is  a  contempt  punishable  by  the  court  or  a  judge  thereof 
by  an  attachment  issued  upon  the  master's  certificate.9    Upon  the 

s  Daniell's  Ch.  Pr.  ch.  xxvi.  4  Rule  77. 

§313.   1  Rule  80.  But  see  Hammacher  6  Rule  81. 

v.  Wilson,  32  Fed.  R.  796.  6  Rule  81. 

2  Bell  v.  U.  S.  Stamping  Co.,  32  Fed.  »  Rule  78. 
R.  549.  8  Rule  78. 

3  Bell  v.  U.  S.  Stamping  Co.,  32  Fed.  R.  9  Rule  77. 
549. 


§  314]  masters'  reports  and  compensation.  461 

master's  certificate  a  commission  issues  from  the  clerk's  office  to 
take  the  depositions  of  witnesses  according  to  the  Acts  of  Con- 
gress or  equity  rules.10  Under  extraordinary  circumstances,  a 
master  may  take  testimony  beyond  the  territorial  jurisdiction  of 
the  court.11  A  master  has  power  to  direct  the  mode  in  which 
matters  requiring  evidence  shall  be  proved  before  him.12  The 
court  wili  rarely  interfere  with  the  master's  ruling  in  this  respect 
until  his  report  is  brought  before  it  for  review.13 

§  314.  Masters'  Reports  and  Compensation.  — -  The  final  decision 
of  a  master  upon  the  matters  referred  to  him  is  embodied  in  his 
report  to  the  court.  He  is  forbidden  by  the  rules  to  recite  at 
length  any  part  of  any  paper  or  deposition  brought  in  or  used 
before  him.1  He  is,  however,  required  to  refer  to  and  identify 
every  state  of  facts,  charge,  affidavit,  deposition,  examination,  or 
answer  used  before  him,  so  as  to  inform  the  court  concerning 
the  pleadings  and  evidence  which  he  considered  in  reaching  the 
conclusions  embodied  in  his  report.3  It  is  the  better  practice 
for  a  master  before  making  his  report  to  prepare  and  serve  on 
the  parties  a  draft  of  the  same,  with  notice  of  a  time  and  place 
when  and  where  he  will  hear  their  objections  thereto.3  At  the 
appointed  time,  counsel  should  appear,  make  their  objections  to 
the  proposed  report,  and  see  that  these  objections  are  noted  in 
writing  and  filed  with  the  master.4  The  practice  is,  however, 
in  some  circuits  very  loose  in  this  respect.5  A  master  cannot 
retain  his  report  as  securit}'  for  his  compensation.6  His  compen- 
sation is  fixed  by  the  court  in  its  discretion  with  regard  to  the 
circumstances  of  each  particular  case.7  This  compensation  is 
charged  upon  and  borne  by  such  of  the  parties  to  the  cause  as 
the  court  shall  direct.8  A  master's  compensation  upon  an  ac- 
counting is  usually  imposed  in  the  first  instance  upon  the 
accounting  party.9  The  order  adjusting  a  master's  compensa- 
tion should  name  the  party  who  is  required  to  pay  it  and  a  time 

10  Rule  77.  4  Fischer   v.  Hayes,  16  Fed.  R.  460 ; 

11  Bate   Refrigerating  Co.  v.  Gillette,     Story  v.  Livingston,  13  Pet.  359. 

28  Fed  R.  673.  5  Hatch  v.  Indianapolis  &  Springfield 

12  Rule  77.  R.  R.  Co.,  9  Fed.  R.  856. 

13  Lull    v.    Clark,    20    Fed.    R.    454  ;  6  Rule  82. 

Wooster  v.  Gumhirnner,  '20  Fed.  R.  167.  7  Rule  82;  Erie  Ry.  Co.  v.  Heath,  10 

§  314.  l  Rule  76.  Blatchf.  214 ;   Middleton    v.    Rankers'  & 

2  Rule  76.     See  In  re  Thomas,  35  Fed.  Merchants'  Tel.  Co.,  32  Fed.  R.  524. 
337,  339.  8  Rule  82. 

3  Fischer  v.  Hayes,  16  Federal  Re-  9  Urner  v.  Kavton,  17  Fed.  R.  539  ; 
porter,  469.  8.  c   17  Fed.  R.  815. 


462  PROCEEDINGS    IN   A   MASTER'S   OFFICE.        [CHAP.  XXIil. 

within  which  such  payment  is  to  be  made.10  Failure  to  comply 
with  the  order  is  punishable  by  attachment  for  contempt  of 
court.11  It  seems,  however,  that  payment  pending  a  suit  can 
only  be  compelled  on  the  application  of  the  master  or  his  repre- 
sentative, not  at  the  request  of  a  party.1'2  As  soon  as  the  report 
is  ready,  the  master  should  file  the  same  in  the  clerk's  office ;  and 
the  clerk  should  enter  the  day  of  the  return  in  the  order  book.13 
If  no  exceptions  are  filed  within  one  month  from  the  time  of 
filino-,  the  report  is  considered  as  confirmed  on  the  next  rule-day 
after  the  month  has  expired.14 

§  315.  Exceptions  to  Master's  Reports.  —  Exceptions  to  the  re- 
port of  a  master  must  be  filed  within  one  month  from  the  day 
when  it  was  filed.1  No  exception  will  lie  to  any  matter  which 
was  not  objected  to  before  the  master.2  In  circuits,  where  it  is 
not  the  practice  for  masters  to  serve  drafts  of  their  reports,  an 
exception  to  the  report,  but  not  an  exception  to  a  ruling  in  evi- 
dence, can  be  filed  without  a  preliminary  objection.3  Such  an 
exception  has  also  been  permitted  after  a  draft  of  the  report  had 
been  served,  and  no  objection  made  thereto.4  Objections  in  sup- 
port of  exceptions  may  be  allowed  to  be  filed  nunc  pro  tunc.5  Ex- 
ceptions should  specifically  point  out  the  errors  of  which  they 
complain,  and  if  they  rely  on  any  part  of  the  testimony,  should 
either  state  the  same  or  refer  thereto,  so  that  the  court  can  without 
difficulty  find  it.6  Exceptions  to  the  admission  or  exclusion  of 
evidence,  taken  upon  the  hearing  before  the  master,  need  not  be 
re-stated  in  the  exceptions  filed  to  his  report.7  If  the  court  is  in 
session  when  exceptions  are  filed,  they  are  argued  at  that  ses- 
sion ; s  otherwise,  at  the  next  session.9  Every  presumption  is  in 
favor  of  the  correctness  of  the  decision  of  a  master.10  If  the  tes- 
io  Rule  82.  Jennings  v.  Dolan,  29  Federal  Reporter, 


ii  Rule  82. 


861. 


"  Mallory  Manuf.  Co.  v.  Fox,  20  Fed.  3  Hatch  v.  Indianapolis  &  Springfield 

R  409  R.  R.  Co.,  9  Fed.  R.  856.     See  Jennings  v. 

is  Rule  83.  Dolan-  29  Fed  R'  86L 

M  Ru|e  g3  *  Jennings  v.  Dolan,  29  Fed.  R.  861. 

8  315     i  Rule   83.     But  see   Central         6  Fischer  v.  Hayes,  16  Fed.  R.  469. 
Trust  Co.  v.  Wabash,  St.  L.  &  P.  Ry.  6  Harding   v.  Handy,  11  Wheat.  103; 

Co      Hamilton   Intervenor,   27   Fed.    11.  Foster  v.  Goddard,  1  Black,  506  ;  Greene  v. 

175'  Bishop,  1  Cliff.  186  ;   Stanton  v.  Alabama 

I*  Troy  Iron  &  Nail  Factory  v.  Corn-  &  C.  11.  R.  Co.,  2  Woods,  506. 
ing,  6  Blatchf.  328  ;  Fischer  v.  Hayes,  16  7  Marks  v.  Fox,  18  Fed.  R.  713. 

Fed.  R.  469;  Story  v.  Livingston,  13  Pet.  8  Rule  83. 

359       But   see  Hatch  v.  Indianapolis  &  9  Rule  83. 

Springfield   R.  R.  Co.,  9  Fed.   R.  856;         10  Medsker  v.  Bonebrake,  108  U.  S.  66 ; 


§  31C]  SALES   BY   MASTERS.  463 

timony  is  conflicting,  the  court  will  rarely  interfere  •with  the 
master's  decision  on  the  facts,  provided  he  made  no  errors  in 
law  which  affected,  the  result.11  Trifling  errors  in  a  master's 
statement  of  an  account  will  be  disregarded.12  Exceptions  to  a 
master's  report  are  only  proper  when  he  has  made  an  erroneous 
decision  upon  the  matters  referred  to  him.13  The  remedy  for  an 
irregularity  in  his  proceeding,  or  for  his  neglect  to  report  upon 
all  of  the  matters  referred,  to  him,  is  a  motion  to  set  aside  the 
report,  or  to  refer  the  same  back  to  the  master.11  The  party 
who  files  exceptions  is  obliged  to  pay  costs  for  each  exception 
overruled,  and  is  entitled  to  costs  for  each  exception  allowed.15 
The  amount  of  costs  is  fixed  by  the  court  in  accordance  with 
a  standing  rule  in  each  circuit.16  The  review  of  a  master's 
report  upon  a  receiver's  account  is  described  in  a  preceding 
section.17 

§  316.  Sales  by  Masters.  —  When  property  is  directed  to  be 
sold  by  a  master,  it  must  be  sold  at  public  auction  unless  the 
court  otherwise  directs.1  Such  a  sale  is  conducted  under  the 
superintendence  of  the  solicitor  for  the  party  at  whose  prayer 
the  sale  is  made,  and  in  all  questions  which  subsequently  arise 
between  the  buyer  and  the  seller  it  is  said  that  he  is  considered 
as  the  agent  of  all  the  parties  to  the  suit.2  The  particulars  and 
conditions  of  the  sale  are  prepared  by  him.  They  should  be 
entitled  in  the  cause,  and  should  contain  a  general  description 
of  the  nature  and  situation  of  the  property  ;  and  if  land,  should 
state  in  whose  possession  it  is  or  has  lately  been.3  The  con- 
ditions of  the  sale  should  be  in  general  similar  to  those  annexed 
to  ordinary  sales  of  similar  property  in  the  vicinity.4  The  sale 
should  be  advertised  at  least  twice,  and  should  give  such  a 
description  of  the  property  as  clearly  to  indicate  and  identify  it.6 

Til  gh  man  v.  Proctor,  125  U.  S.  136  ;  Cal-  W  Rule  84. 

laghan  v.  Myers,  128  U.  S.  617,  666  ;  Kim-  ™  Rule  84. 

berly  v.  Arms,  129  U.  S.  512,  524.  «  §  256. 

11  Welling   v.  La  Bau,  34  Fed.  R.  40;  §  316.    >  Daniell's  Ch.  Pr.  ch.  xxvi. 
Mason  v.  Crosby,  3  W.  &  M.  258;  Gott-  -  Dnlhy  v.  Pullen,  1  R.  &  M.  296.     But 
fried  v.  Crescent  Brewing  Co.,  22  Fed.  R.  see  Blossom  v.  Railroad  Co.,  3  Wall.  196, 
433  ;  Jaffrey  v.  Brown,  29  Fed.  R.  476  ;  207. 

Central  Trust  Co.  v.  Texas  &  St.  L.  Ry.  3  Daniell's  Ch.  Pr.  ch.  xxvi. 

Co.,  32  Fed.  R.  448.  *  Daniell's  Ch.  Pr.  ch.  xxvi. 

12  Taylor  v.  Robertson,  27  Fed.  R.  537.  5  Kauffman  r.  Walker,  9  Md.  229  ; 
18  Taylor  v.  Robertson,  27  Fed.  R.  537.  Merwin  v.  Smith,  1  Green  Ch.  (N.  J.) 
14  Tyler  v.  Simmons, 6  Paige  Ch.  (N.Y.)  182 ;  Daniell's  Ch.  Pr.  ch.  xxvi. 

127. 


464  PROCEEDINGS   IN   A   MASTER'S    OFFICE.        [CHAP.  XXIII. 

The  master  has  power  to  adjourn  the  sale,  even  after  the  auction 
has  begun  and  bids  have  been  made.6  The  sale  is  conducted  in 
substantially  the  following  manner:  The  master,  his  clerk,  or  a 
person  appointed,  by  him,  is  present  with  a  paper  upon  which  the 
biddings  for  the  different  lots  are  to  be  marked.7  The  lots  are 
successively  put  up  at  a  price  offered  by  any  person  present ; 
such  person,  according  to  the  English  practice,  signing  his  name 
to  the  sum  which  he  offers  on  the  paper.8  If  the  property  to  be 
sold  consists  of  a  railroad,  and  its  appurtenances,  it  is  usually 
sold  as  a  single  thing;9  and  in  such  a  case  the  court  may  make 
a  condition  of  the  sale  that  no  bid  shall  be  considered  unless  each 
bidder  first  deposit  a  specified  sum  in  cash,  —  in  one  instance, 
twenty-five  thousand  dollars,10  —  and  that  no  bid  be  considered 
unless  it  exceed  a  specified  amount.11  Every  subsequent  bidder 
must  do  like  the  first  until  no  person  will  advance  on  the  last  bid- 
der, when  the  latter  is  declared  the  purchaser ; 12  unless  there  has 
been  a  reserved  bidding  fixed,  when  if  the  last  bidding  does  not 
reach  the  reserved  one,  the  person  conducting  the  sale  declares 
that  the  lot  has  not  been  sold,  but  has  been  bought  in  by  the 
persons  interested  in  the  estate.13  It  seems  that  the  court  may 
direct  that  the  sale  be  made  for  cash,  in  a  suit  under  a  railroad 
mortgage  which  provides  that  the  purchase-money  may  be  paid 
in  bonds.14  A  bid  may  be  revoked  any  time  before  the  ham- 
mer falls.15  A  part}'"  to  the  suit  has  the  right  to  buy  at  the 
sale.16  The  sale  does  not  take  effect  until  confirmed  by  the 
court.17  The  confirmation  may  be  upon  terms.18  In  one  case, 
the  purchaser  was  required  to  assume  responsibility  for  obliga- 
tions of  the  receiver  as  a  condition  of  the  confirmation  of  the 

6  Blossom   v.  Railroad    Co.,  3  Wall.  N.  D.  Illinois,  Gresham  &  Jackson,  JJ., 
196.  1889. 

7  Daniell's  Ch.  Pr.  ch.  xxvi.  12  Daniell's  Ch.  Pr.  eh.  xxvi. 

8  Daniell's  Ch.  Pr.  ch.  xxvi.  13  Daniell's  Ch.  Pr  ch.  xxvi. 

9  Jones  on  Railroad  Securities,  §§  625-  "  Farmers'  L.  &  Tr.  Co.  ».  G.  B.  &  M. 
628.  R.  R-  Co.,  10  Biss.  203 ;  s.  c.  6  Fed.  R.  100. 

">  Farmers'  L.  &  Tr.  Co.  v.  Green  Bay  15  Blossom  v.  Railroad  Co.,  3  Wall.  106. 

&  Minn.  R.  R.  Co.,  10  Biss.  203.  See  Mayhew  v.  West  Virginia  Oil  &  Oil 

11  Farmers'  Loan  &  Tr.  Co.r.  Houston  &  Land  Co.,  24  Fed.  R.  205,  215. 

Texas  Central  R.  R.  Co.,  Pardee  &  Sabin,  >«  Smith  v.  Black,  115  U.  S.  308. 

JJ.,  May,  1888 ;  Hervey  v.  Illinois  Midland  17  Mayhew  v.  West  Virginia  Oil  &  Oil 

Ry.  Co.,  U.  S.  C  C,  S.  D.  Illinois,  June  Land  Co.,  24  Fed.  R.  205,  215. 

10th,  1886;  Roosevelt  v.  Columbus,  C.  &  18  Farmers'  L.  &  Tr.  Co.  v.  Green  Bay 

I.   C.  Ry.  Co.,  U.  S.  C.  C,  N.  D.  Illinois,  &  Minn.  R.  R.  Co.,  10  Biss.  203  ;    s.  c.  6 

Drummonrl,  J.,  Nov.  15th,  1882;  Jesup  v.  Fed.  R.  100  ;  F.  L.  &  Tr.  Co.  v.  Central 

Wabash,  St.  L.  &  P.  Ry.  Co.,  U.  S.  C.  C,  R.  R.  of  Iowa,  17  Fed.  R.  758. 


§  316.] 


SALES   BY  MASTERS. 


465 


sale.19  Should  the  purchaser  fail  to  pay  the  money  promised,  a 
re-sale  will  be  ordered,  provided  the  rights  of  third  persons  have 
not  intervened ; 20  and  he  may  be  compelled  by  attachment  to 
pay  the  difference  between  his  bid  and  the  amount  realized  from 
the  second  sale.21  Such  a  re-sale  may  be  ordered  by  a  summary 
proceeding  upon  the  return  of  an  order  to  show  cause  served 
upon  the  purchaser.22 


19  F.  L.  &  Tr.  Co.  v.  Central  R.  R.  of 
Iowa,  17  Fed.  R.  758. 
2°  Stuart  v.  Gay,  127  U.  S.  518. 


21  Stuart  v.  Gay,  127  U.  S.  518. 

22  Stuart  v.  Gay,  127  U.  S.  518. 

23  Jaffrey  v.  Brown,  29  Fed.  R.  476, 


30 


466  DEGREES.  [CHAP.  XXIV. 


CHAPTER  XXIV. 

DECREES. 

§  317.  Definition  and  Classification  of  Decrees.  —  A  decree  is  a 
sentence  or  order  of  a  court  of  equity  pronounced  after  a  bear- 
ing of  the  points  of  issue  ;  and  corresponds  to  a  judgment  of  a 
court  of  law.  A  decree  should  be  distinguished  from  a  decretal 
order.  A  decretal  order  is  an  order  in  the  nature  of  a  decree, 
made  upon  motion  or  petition,  either  before  or  after  the  hearing, 
or  in  an  independent  proceeding.1  According  to  the  different 
standpoints  from  which  they  may  be  regarded,  decrees  are  classi- 
fied, as  final  or  interlocutory  ;  as  in  personam  or  in  rem  ;  as  abso- 
lute, conditional,  decrees  wm,  or  decrees  in  the  nature  of  decrees 
nisi. 

§  318.  Final  and  Interlocutory  Decrees.  —  Decrees  are  either 
final  or  interlocutory.  These  terms  are  used  with  different 
meanings  in  the  English  practice,  and  in  that  in  the  courts  of  the 
United  States.  A  final  decree  in  the  English  Chancery  was  a 
complete  determination  of  every  question  arising  in  a  cause.1  An 
interlocutory  decree  was  one  which  reserved  the  further  con- 
sideration of  any  question  arising  in  a  cause  till  a  future 
hearing.2  In  strictness,  moreover,  every  decree  was  said  to  be 
interlocutory  until  it  was  signed  and  enrolled.3  In  England,  an 
appeal  lay  from  an  interlocutory  as  well  as  from  a  final  decree  ; 4 
but,  under  the  Judiciary  Act,  only  final  decrees  of  a  Federal 
court  can  be  brought  to  a  court  of  appeal  for  revision.5  On 
account  of  the  inconvenience  which  would  have  followed,  had 
the  old  definition  been  applied  to  the  term  used  in  this  statute, 
the  Federal  courts  have  refused  to  follow  the  English  Chancery 
in  this  respect.  As  far  as  appeals  are  concerned,  a  decree  is 
considered  final  which  decides  the  right  to  property,  and  orders 

§  317.    1  1  Barbour's  Chancery  Prac-         3  Forum  Romanum,  183  ;  Seton's  De- 

tice,  337.  crees  (4th  ed.),  2. 

§  318.   l  Seton's  Decrees  (4th  ed.),  2.  *  Forgay  v.  Conrad,  6  How.  201,  205. 

2  Seton's  Decrees  (4th  ed.),  2.  6  U.  S.  R.  S.  §§  631,  692. 


§  319.]  DECEEES  IN  PERSONAM.  467 

that  it  be  sold  or  delivered  to  a  party  ;  or  creates  a  lien  upon 
property  ;  or  directs  a  specific  sum  of  money  to  be  paid  10  a 
party  either  by  another  person  or  out  of  a  fund  in  court,  pro- 
vided that  the  successful  party  is  entitled  to  compel  its  immedi- 
ate execution,6  even  though  the  consideration  of  other  matters 
arising  upon  the  pleadings  is  reserved  "  for  further  considera- 
tion" in  it.7  So,  too,  is  a  decree,  which  settles  all  the  rights  of  the 
parties  involved  in  the  pleadings,  though  it  gives  leave  to  either 
one  of  them  to  apply  at  the  foot  of  the  decree  "  in  relation  to  any 
matter  not  finally  determined  by  it."8  All  other  decrees  which 
reserve  any  question  for  the  court's  further  decision,  even 
though  they  direct  money  to  be  paid  into  court,9  or  property  to 
be  delivered  to  a  receiver,10  or  new  trustee  appointed  by  the 
court ; u  or  enjoin  a  party  from  the  performance  of  an  act ; 12  or 
dissolve  an  injunction;13  or  punish  a  party  for  contempt;14  or 
direct  a  sale,  but  do  not  sufficiently  specifically  determine  the 
property  to  be  sold  to  warrant  an  immediate  sale ;  15  or  direct  a 
sale,  but  do  not  appoint  the  time  of  sale,16  —  are,  it  seems,  in- 
terlocutory decrees  from  which  no  appeal  can  under  the  Judiciary 
Act  be  taken ;  although,  if  the  decision  of  the  court  in  making 
them  was  erroneous,  the  final  decree  may  be  reversed  on  that 
account  upon  an  appeal  by  a  party  who  was  thereby  injured.17 

§  319.  Decrees  in  personam.  —  Decrees  are  either  in  personam 
or  in  rem.     Decrees  in  personam  are  those  which  contain  a  com- 

6  Chief  Justice  Taney  in  Forgay  v.  Bank  v.  Whitney,  121  U.  S.  284.  But  see 
Conrad,  6  Plow.  201,  204 ;  Miehoud  o .  Wabash  &  Erie  Canal  v.  Beers,  1  Black, 
Girod,  4  How.  503  ;  Kay  v.  Law,  3  Cranch,     54. 

179;    Whiting  v.   Bank   of    the    United  10  Forgay  v.  Conrad,  6  How.  201 ;  Beebe 

States,  13  Pet.  6  ;  Wabash  &  E.  Canal  v.  Russell,  19  How.  283;  Hentig  v.  Bage, 

Co.    v.  Beers,    1  Black,  54 ;   Bronson  v.  102  U.  S.  219.     But  see  Wabash  &  Erie 

Railroad  Co.,  2  Black,  524  ;  Milwaukie  Canal  v.  Beers,  1  Black,  54. 

&  M.  PI.  R.  Co.  v.  Soutter,  2  Wall.  440 ;  "  Pulliam  v.  Christian,  6  How.  209. 

Thomson  v.  Dean,  7  Wall.  342  ;  Railroad  12  Brown  v.  Swann,  9  Pet.  1 ;  McCollum 

Co.  v.  Bradleys,  7  Wall.  575;  Stovall  v.  v.  Eager,  2  How.  Gl ;  Thomas  &  Co.   v. 

Banks,  10  Wall.   583;    French  v.   Shoe-  Wooldridge,  23  Wall.  283. 

maker,  12  Wall.  86;  Marin  v.  Lalley,  17  13  Young   v.   Grundy,   6    Cranch,   51  ; 

Wall.   14;    Trustees   v.   Greenough,    105  Moses  v.  Mayor,  15  Wall.  387  ;  Verden  v. 

U.  S  527;   Farmers'  L.  &  Tr.  Co.,  Peti-  Coleman,  18  How.  86. 

tioner,  129  U.  S.  206.  n  Hayes  v.  Fischer,  102  U.  S.  121. 

7  St.  Louis,  I.  M.  &  S.  R.  R.  Co.  v.  ™  Railroad  Co.  v.  Swascy,  23  Wall. 
Southern  Express  Co.,  108  U.  S.  24  ;  Mo.  405. 

K.  &  T.  R.  R.  Co.  v.  Dinsmore,  108  U.  S.  1U  Parsons  v.  Robinson,  122  U.  S.  112  ; 

30.  Burlington,  C.  R.  &  N.  Ry.  Co.  v.  Sim- 

8  French  v.  Shoemaker,  12  Wall.  S6.  mons,  123  U.  S.  52. 

9  Forgay  v,  Conrad,  (!  How.  201  ;  n  Buckingham  v.  McLean,  IS  How. 
Beebe  v.  Russell,  19  How.  283;  Louisiana  150. 


468 


DECREES. 


[CHAP.  XXIV. 


mand  to  one  of  the  parties  to  a  suit  in  equity.  Decrees  in  rem 
are  such  as  without  containing  command  to  either  of  the  parties 
transfer  the  title  to  property.  Decrees  in  personam  may  direct  the 
performance  of,  or  the  abstention  from  an  act  or  acts.  The  or- 
dinary decree  of  a  court  of  equity  is  a  decree  in  personam.  Such 
a  decree  may  be  made  even  though  it  directs  the  performance 
of  or  abstention  from  an  act,  or  directs  a  transfer,  or  otherwise 
affects  the  title  to  property  beyond  the  jurisdiction  of  the  court.1 
But  a  statute  provides  that  "  the  original  jurisdiction  of  the 
circuit  court  for  the  Southern  District  of  New  York  shall  not 
be  construed  to  extend  to  causes  of  action  arising  within  the 
Northern  District  of  said  State."  2  So,  where  in  order  to  obtain 
the  relief  sought  it  would  be  necessary  for  the  court  to  take  pos- 
session by  its  officers  of  land  beyond  its  territorial  jurisdiction,  it 
has  been  said  that  such  a  decree  should  not  be  granted.3  Thus, 
it  seems  that  the  court  will  not  decree  a  partition  of  land  beyond 
the  jurisdiction,  since  no  commission  appointed  by  it  could  have 
authority  to  act  there ; 4  but  it  will  decree  specific  performance 
of  a  contract,  or  the  foreclosure  of  a  mortgage  affecting  land 
no  matter  where  it  may  be  situated.5  It  has  been  held  in  Eng- 
land that  the  court  will  make  no  decree  in  a  suit  between  two 
foreigners  not  residents  of  the  country  concerning  a  contract 
made  or  land  situated  elsewhere.6  And  a  Georgian  case  holds 
that  a  court  of  equity  will  not  compel  a  corporation  to  perform 
a  contract  to  open  ditches  and  keep  fences  in  repair  in  a  State 
where  it  has  no  corporate  existence.7  It  often  happens,  however, 
that  the  court  can  do  a  thing  itself  more  easily  and  effectively 
than  it  can  compel  it  to  be  done  by  the  party  concerned,  as,  for 


§  319.  J  Arglasse  v.  Muschamp,  1  Vern. 
75 ;  Carron  Iron  Co.  v.  Maclaren,  5  H.  L.  C. 
416;  Muller  v.  Dows,  94  U.  S.  444;  Wheeler 
v.  McCormick,  4  Fisher's  Pat.  Cas.  433 ; 
6.  c.  8  Blatchf.  267.  For  an  excellent 
review  of  the  authorities,  see  the  learned 
opinion  of  Judge,  subsequently  Chief 
Judge,  Davies,  in  Gardner  v.  Ogden,  22 
N.  Y.  327. 

2  U.  S.  R.  S.  §  657  ;  Hodge  v.  Hudson 
River  Railroad  Co.,  3  Fisher's  Pat.  Cas. 
410  ;  s.  c.  6  Blatchf.  85 ;  Locomotive  E. 
S.  T.  Co.  v.  Erie  Railway  Co.,  10  Blatchf. 
292 ;  Black  v.  Thorne,  10  Blatchf.  66. 

3  Muller  v.  Dows,  94  U.  S.  444,  449; 
Macgregor  v.   Macgregor,   9   Iowa,  65; 


Glen  v.  Gibson,  9  Barb.  (N.  Y.)  634; 
Story's  Eq.  Jur.  §  1292  ;  2  Spence,  8, 
n  (d)  ;  Smith's  Eq.  30;  Bispham's  Eq. 
§47. 

4  2  Spence,  8,  n  (d) ;  Story's  Eq.  Jur. 
§  1292 ;  Smith's  Eq.  30 ;  Bispham's  Eq. 
§  47. 

5  Penn  v.  Lord  Baltimore,  1  Ves.  Sen. 
444;  Massie  v.  Watts,  6  Cranch,  148; 
Muller  v.  Dows,  94  U.  S.  444  ;  McElrath 
v.  The  Pittsburg  &  Steubenville  R.  R.  Co., 
5  Pa.  St.  189. 

6  Matthaei  v.  Galitzin,  L  R.  18  Eq. 
340 ;  Blake  v.  Blake,  18  W.  R.  944. 

^  Port  Royal  R.  R.  Co.  v.  Hammond,  58 
Ga.  523. 


§  321.]  ABSOLUTE   AND   CONDITIONAL   DECREES.  469 

example,  wnen  it  wishes  to  sell  property  or  to  cancel  an  instru- 
ment in  writing,  and  it  then  will  perform  that  duty  by  means  of 
a  master  or  receiver.8  When  all  the  defendants  are  within  the 
jurisdiction,  such  a  decree  is  usually  accompanied  by  a  command 
to  them  to  confirm  the  sale  or  other  action  of  the  court,  or  to 
assist  in  the  transaction  directed  by  the  decree.  When,  however, 
a  defendant  is  beyond  the  jurisdiction,  the  court  sometimes  acts 
by  a  decree  in  rem. 

§  320.  Decrees  in  rem.  —  A  decree  in  rem  is  one  that  determines 
the  title  to  or  an  interest  in  real  or  personal  property  within  the 
territorial  jurisdiction  of  the  court,  without  having  any  other 
effect  upon  a  defendant  who  dwells  beyond  that  jurisdiction  and 
has  not  been  served  with  process  within  it.  Such  an  equitable 
decree  must  be  distinguished  from  the  decrees  in  rem  of  a  court 
of  admiralty,  which  establish  a  title  conclusively  against  all 
the  world ;  whereas  it  is  only  binding  upon  the  parties  to  the 
action  in  which  it  is  rendered.  Such  decrees  were  formerly  very 
rare,1  and  are  in  the  Federal  courts  purely  statutory,  and  the 
power  of  these  courts  to  make  them  depends  entirely  upon  a  strict 
compliance  with  the  provisions  of  the  statute  allowing  them.2 
Whether  or  not,  under  this  statute  or  otherwise,  a  decree  can  be 
made  and  enforced  which  requires  the  specific  performance  of  a 
contract  for  the  conveyance  of  property  within  the  court's  juris- 
diction against  a  person  not  served  there  with  process,  has  never 
been  decided.3 

§  321.  Absolute  and  Conditional  Decrees.  —  Decrees  are  either 
absolute,  conditional,  nisi,  or  in  the  nature  of  decrees  nisi.  An 
absolute  decree  is  one  that  takes  effect  immediately  upon  its 
entry  and  is  dependent  for  its  enforcement  upon  no  condition, 
and  is  not  subject  to  be  defeated  by  the  occurrence  of  any 
subsequent  event.  A  conditional  decree  is  one  that  by  its 
terms  is  not  to  take  effect  unless  something  shall  be  clone  b}r  the 
party  to  whom  relief  is  given  by  it.  Under  the  present  state  of 
the  authorities,  it  would  be  rash  to  attempt  to  lay  down  a  rule  as 
to  when  a  conditional  decree  will  be  granted,  and  when  the 
plaintiff  will  be  denied  relief  unless  he  has  made  a  specific  offer 

8  Langdell's  Eq.  PI.  §  44.  8  See  Ward  v.  Arredondo,  Hopkins  Ch. 

§  320.    1  Rut  see  Anon.,  1  Atk.  18.  (N.  Y. )  R.  213;  Anon.,  1  Atk.  18;  Rourke 

2  U.  S.  R.  S.  §  738  ;  Act  of  March  3,  v.  McLaughlin,  38  Cal.  196 ;  Matteson  v. 

1875,   ch.  137,  §  8    (18   St.  at  L.  472).  Scofield,  27  Wis.  071;    Story's   Eq.  Jur. 

See  §  97.  §  744,  n.  3. 


470  DECREES.  [CHAP.  XXIV. 

or  waiver  in  his  bill.1  The  following  are  a  few  of  the  cases  when 
a  conditional  decree  alone  has  been  granted.  An  express  com- 
pany has  been  granted  a  decree  compelling  a  railroad  company 
to  carry  freight  for  it,  upon  condition  that  it  should  give  the 
latter  a  bond  to  pay  such  charges  as  the  court  should  subse- 
quently consider  reasonable.2  So,  a  decree  for  the  redemption 
of  a  mortgage  is  upon  condition  that  the  plaintiff  pay  the  balance 
reported  due  from  him  within  six  months,  which  it  seems  must  be 
lunar  not  calendar  months,  after  the  report,  in  default  whereof 
the  plaintiff's  bill  against  the  defendant  is  from  thenceforth  to 
stand  dismissed  out  of  court  with  costs.3  Upon  default,  a  final 
order,  which  will  be  granted  as  of  course,  is  necessary  to  dismiss 
the  bill.4  So,  too,  a  decree  allowing  a  junior  incumbrancer  to 
redeem  may  be  upon  condition  that  he  pay  off  a  prior  incum- 
brance, and  repay  to  its  holder  money  paid  by  him  in  discharg- 
ing still  prior  incumbrances,  and  for  taxes,  repairs,  and  insurance 
upon  the  mortgaged  premises.5  Similarly,  a  decree  upon  a  bill 
by  a  purchaser  for  the  specific  performance  of  an  agreement  for 
the  sale  of  an  estate  may  appoint  a  time  and  place  for  the  pay- 
ment of  the  purchase-money,  with  interest  if  any  be  due,  and 
direct  that  in  default  of  payment  the  bill  be  dismissed  with 
costs.6  A  decree  for  an  accounting  should  always  contain  a 
submission  by  the  plaintiff  to  account.7  It  has  been  made  a  con- 
dition precedent  to  the  entry  of  a  decree  to  enjoin  the  infringe- 
ment of  a  patent,  that  the  complainant  first  file  in  the  Patent 
Office  a  disclaimer  of  those  of  the  claims  in  the  patent  to  which 
he  is  not  entitled.8  For  conditions  of  sales  in  suits  to  fore- 
close railway  mortgages  see  the  preceding  section  upon  sales  by 
masters.9 

§  322.  Decrees  nisi. — A  decree  nisi  is  one  giving  a  defendant 
a  certain  specified  time  within  which  to  show  cause  against  a 
decree  or  to  perform  some  other  act  in  relation  thereto,  in  default 
whereof  it  shall  be  absolute  against  him.  Such  a  decree  is 
made  against  an  infant  or  a  mortgagor,  or  the  latter's  assigns. 

§  321     l  See  Moore  v.  Crawford,  130  5  McCormick  v.  Knox,  105  U.  S.  122. 

U.  S.  122,  140.  6  I.owther  v.  Andover,   1  Bro.  C.  C. 

2  Southern  Express  Co.  v.  St.  Louis,     396. 

I.  M.  &  S.  R.  R.  Co.,  10  Fed.  R.  210 ;  re-         7  Fowler  v.  Wyatt,  24  Beav.  232  ;  Se- 

versed  Express  Cases,  117  U.  S.  1.  ton  on  Decrees  (4th  ed  ),  775. 

3  Seton  on  Decrees,  140;  Waller  v.  8  Sessions  v.  Romadka,  21  Fed.  R.  124, 
Harris,  7  Paige  (N.  Y.),  167.  133;  Hake  v.  Brown,  37  Fed.  R.  783. 

*  Seton  on  Decrees,  178.  9  §  316. 


§  322.]  DECREES   NISI.  471 

According  to  the  English  rule,  all  decrees  against  an  infant 
defendant  which  require  some  act  to  be  performed  by  him,1  or 
directed  a  conveyance  or  a  foreclosure  of  his  interest  in  any  real 
estate,  must  contain  a  clause  giving  him  an  opportunity  to  show 
cause  against  it  after  he  has  come  of  age.2  When  a  sale  of  land 
is  directed  by  such  a  decree,  it  usually  contains  a  direction  that, 
in  the  mean  time,  a  purchaser  under  the  sale  shall  hold  and 
enjoy  the  estate  against  the  infant  until  he  attains  full  age  ; 3  and 
the  court  so  far  protects  a  purchaser  that  it  will  not  permit  his 
title  to  be  affected  by  a  mere  irregularity  in  the  decree.4  When 
a  decree  directs  a  conveyance  by  both  adult  and  infant  par- 
ties, as  in  a  partition  suit,  it  seems  that  it  should  not  direct  a 
conveyance  by  any  till  the  infant  is  of  age  and  has  had  an  oppor- 
tunity to  show  cause  against  the  decree,  and  in  the  meantime 
should  only  extend  so  far  as  to  give  possession  in  accordance 
with  the  court's  decision  and  order  enjoyment  accordingly  till 
effectual  conveyances  can  be  made.5  It  seems  that  in  no  other 
instances  will  a  decree  nisi  be  entered  against  an  infant  defend- 
ant, although  there  is  some  doubt  upon  this  point.6  In  a  few 
exceptional  cases,  when  an  infant  plaintiff  in  his  bill  exercised  an 
election  between  two  conflicting  claims,  the  court  has  allowed 
him  a  day  after  he  became  of  age  in  which  to  show  cause  against 
it.7  The  usual  form  of  the  nisi  clause  in  such  a  decree  is  as  fol- 
lows: "And  this  decree  is  to  be  binding  on  the  defendant,  the 
infant,  unless  on  being  served,  after  he  shall  have  attained  the 
age  of  twenty-one  years,  with  subpoena  to  show  cause  against 
this  decree,  he  shall  within  six  months  from  the  service  of  such 
subpoena  show  unto  this  Court  good  cause  to  the  contrary."8 
Such  a  clause  should  be  inserted  in  the  order  for  making  a  decree 

§  322.  i  Walsh  v.  Trevannion,  16  Simons,  5  Agar  v.  Fairfax,  17  Ves.  533,  554  ; 

178;   Eyre  v.  The   Countess   of  Shafts-  Attorney-General  v.  Hamilton,  1    Madd. 

bury,  2  P.  Wms.  102 ;  Sheffield   v.   The  214. 

Duchess  of  Buckingham,   1  West,  682;         6  Seton  on  Decrees  (4th  ed.),  714  ;  Eyre 

Thoroton  v.  Blackhorne,  2  W.  Kclynge,  7  ;  v.  The   Countess  of    Shaftsbury,   2    P. 

Seton  on  Decrees  (4th  ed.),  712,713.  Wms.  102;   Sheffield  p.  The  Duchess  of 

2  Williamson  v.  Gordon,  10  Ves.  114;  Buckingham,  1  West,  682. 
Mallack  v.  Galton,  3  P.  Wms.  352;  New-  7  Gregory  v.  Molcsworth,  3  Atk.  626; 

bury  v.   Marten,    15  Jur.   166;    Mills  v.  Sir  John  Napier  v.  Lady  Effingham,   2 

Dennis,  3  J.  Ch.  (N.  Y.)  367  ;   Seton  on  P.  Wms.  401  ;  Lord  Brook  v.  Lord  Hert- 

Decrees  (4th  ed.),  714.    But  seeCroxonu.  ford,  2  P.  Wms.  518;  Taylor  v.  Philips, 

Lever,  12  W.  R.  237.  2  Ves.  Sen.  23. 

8  Powell  v.  P.nvcll,  Mad.  &  Geld.  53.  8  Seton  on  Decrees,  (4th  ed.),  711. 

*  Bennet  v.  Hamill,  2  Sch.  &  Lef.  566. 


472  DECREES.  [CHAP.  XXIV. 

of  foreclosure  absolute  as  well  as  in  the  decree.9  The  omission 
of  a  similar  clause  in  such  a  decree  is  error.10  The  six  months 
after  the  service  of  process  within  which  cause  must  be  shown 
must  be,  it  seems,  lunar  not  calendar  months.11  At  the  expiration 
of  them  and  upon  proof  of  the  requisite  facts,  an  order  making 
the  original  decree  absolute  should  be  entered.12  A  decree  for  a 
foreclosure  should  also  be  nisi,  providing  for  either  a  strict  fore- 
closure or  a  foreclosure  sale,  unless  the  whole  amount  due  shall 
be  paid  within  a  reasonable  time,  usually  six  lunar  months,  from 
the  time  of  the  conclusion  of  the  accounting  and  the  certificate 
of  what  is  due  under  the  mortgage.13  An  omission  of  such  a 
clause  is  error.14  At  the  expiration  of  the  allotted  time,  if  the 
debt  be  still  unpaid,  the  plaintiff  should  obtain  an  order  confirm- 
ing the  foreclosure  or  directing  the  sale.15  The  time  for  payment 
may  always  be  enlarged,  even  after  a  peremptory  order  for  a 
sale,16  upon  terms,  which  usually  are  that  the  defendant  give 
good  security  to  pay  the  amount  due,  with  interest  and  costs  in 
full.17  It  has  also  been  held  that  a  decree  of  foreclosure  absolute 
may  also  be  reopened  ; 18  but  it  has  been  said  that  this  can  only 
be  done  when  it  has  been  obtained  by  fraud  or  under  circum- 
stances of  oppression.19  The  Supreme  Court  has  held  that  "  what 
is  indispensable  to  such  a  decree  is,  that  there  should  be  declared 
the  fact,  nature,  and  extent  of  the  default  which  constituted  the 
breach  of  the  condition  of  the  mortgage,  and  which  justified  tho 
complainant  in  filing  his  bill  to  foreclose  it,  and  the  amount  due 
on  account  thereof,  which,  with  any  further  sums  subsequently 
accruing,  and  having  become  due,  according  to  the  terms  of  the 
security,  the  mortgagor  is  required  to  pay  within  a  reasonable 
time,  to  be  fixed  by  the  court,  and  which  if  not  paid,  a  sale  of 

9  Williamson  v.  Gordon,  19  Ves.  114.  Whiting  v.  Bank  of  United   States,    13 

io  Coffin  v.  Heath,  6  Met.  (Mass.)  76.  Pet.  6. 

"  Seton  on  Decrees  (4th  ed.),  711.  16  Edwards  v.  Cunliffe,  1  Madd.  287; 

i2  Seton  on  Decrees  (4th  ed.),  711.  Seton  on  Decrees  (4th  ed.),  1088. 

13  Clark    v.   Keyburn,   8   Wall.    318;  1V  Monkhouse  v.  Corporation  of  Bed- 

nowell  v.  Western  R.  R.  Co.,  94  U.  S.  ford,  17  Ves.  380 ;   Geldard  v.  Hornby, 

463 ;  Chicago  &  V.  R.  R.  Co.  v.  Fosdick,  1  Hare,  251 ;  Holford  v.  Yate,  1  K.  &  J. 

106  U.  S.  47 ;    Perine  v.  Dunn.  4  J.  Ch.  677 ;  Coombe  v.  Stewart,  13  Beav.  11 

(N.  Y.)  140.  18  Campbell    v.    Holyland,    L.    R.    7 

i*  Clark  v.  Reyburn,  8  Wall.  318.  Ch.  D.  166 ;  Seton  on  Decrees  (4th  ed.), 

15  Seton  on  Decrees   (4th  ed.),  1091  ;  1088. 

Chicago  &  V.  R.  R.  Co.  v.  Fosdick,  106  19  Patch  v.  Ward,  L  R.  3  Ch.  203,  212 ; 

U.  S.  47,  71 ;  Sheriff  v.  Sparks,  West,  130  ;  Seton  on  Decrees  (4th  ed  ),  1098. 
Senhouse    v.    Earl,   2    Ves.    Sen.    450; 


§  324.]  TIME   OF   ENTRY   OF   DECREE.  473 

the  mortgaged  premises  is  directed.  "  w  "  In  suits  in  equity  for 
the  foreclosure  of  mortgages  in  the  circuit  courts  of  the  United 
States,  or  in  any  court  of  the  Territories  having  jurisdiction  of 
the  same,  a  decree  may  be  rendered  for  any  balance  that  may  be 
found  due  to  the  complainant  over  and  above  the  proceeds  of  the 
sale  or  sales,  and  execution  may  issue  for  the  collection  of  the 
same,  as  is  provided  in  the  eighth  rule  of  the  Supreme  Court 
regulating  the  equity  practice,  when  the  decree  is  solely  for  the 
payment  of  money."  21  A  State  statute  giving  mortgagors  a  right 
of  redemption  within  a  certain  time  after  a  mortgage  sale,  will  in 
all  cases  be  followed  by  the  Federal  courts,  since  it  establishes 
a  rule  of  property.22  In  the  absence  of  such  a  statute  there  is 
no  right  of  redemption  after  the  sale  under  a  decree  of  foreclos- 
ure has  been  confirmed.23 

§  323.  Decrees  in  the  nature  of  Decrees  nisi.  —  Decrees  in  the 
nature  of  decrees  nisi  are  decrees  taking  a  bill  against  a  defend- 
ant as  confessed,  and  decrees  under  the  statute  affecting  property 
within,  and  against  a  defendant  without  the  jurisdiction  of  the 
court.  Decrees  taking  bills  as  confessed  are  described  in  Chap- 
ter VII.  The  cases  when  a  decree  against  a  defendant  not 
served  with  process  can  be  entered  under  the  Act  of  March  3d, 
1875,  have  been  already  described.1  Any  defendant  or  defend- 
ants to  such  a  statutory  decree  "  not  actually  personally  notified  " 
of  the  suit,  in  accordance  with  the  provisions  of  the  statute,  may, 
at  any  time  within  one  year  after  final  decree,  enter  his  appear- 
ance in  said  suit,  and  thereupon  the  court  must  make  an  order 
setting  aside  the  decree  therein,  and  permitting  such  defendant 
to  plead  on  payment  of  such  costs  as  the  court  shall  deem  just ; 
and  thereupon  the  suit  is  proceeded  with  to  final  judgment  accord- 
ing to  law.2 

§  324.  Time  of  Entry  of  Decree.  —  A  decree  can  regularly  be 
entered  only  during  a  term  of  the  court.1  The  court  has  power 
to  allow  a  decree  to  be  entered  even  in  vacation  as  of  a  previous 


20  Chicago  &  Vincennes  Railroad  Com-  Conn.  Mutual  Life  Ins.  Co.  t\  Cushman, 
pany    v.  Fosdick,   106  U.  S.  47,  70,  per  108  U.  S.  61. 

Matthews,  J.  ^  Parker  v.  Dacres,  130  U.  S.*43. 

21  Rule  92.  §  323.   »  See  §  97. 

22  Brine  v.  Insurance  Co.,  96  U.  S.  627 ;  2  U.  S.  R.  S.  §  738 ;  Act  of  March  3, 
Orvis  v.  T/owell,  98  U.  S.  176  ;  Hammock  1875,  ch.  137,  §  8  (18  St.  at  L.  472),  1st 
v.  Loan  &  Trust  Co.,  105  U.  S.  77  ;  Mason  Supp.  U.  S.  R.  S.  176. 

v.  Northwestern  Ins.  Co.,  106  U.  S.  163 ;  §  324.   J  Griswold  r.  Hill,  1  Paine,  483. 


474  DECREES.  [CHAP.  XXIV. 

term,  nunc  pro  tunc.2     Such  leave  will  always  be  granted  when 
the  delay  was  caused  by  the  action  of  the  court.3 

§  325.  Frame  of  Decree.  —  Decrees  originally  always  consisted 
of  three,  and  sometimes  of  four,  parts.  These  were :  the  date 
and  title  ;  the  recitals ;  the  declaratory  part,  if  that  were  re- 
quired ;  and  the  ordering  part.1  A  decree  usually  begins  with 
a  recital  of  the  day  of  the  month  and  year  when  it  was  pro- 
nounced,2 and  of  the  title  of  the  cause,  in  which  the  parties 
should  have  the  same  designations  that  were  given  them  in  the 
bill.3  Next  always  followed,  formerly,  a  recital  of  the  pleadings, 
evidence,  and  former  proceedings  in  the  cause.4  The  equity 
rules,  however,  provide  that  "In  drawing  up  decrees  and  orders, 
neither  the  bill  nor  answer,  nor  other  pleadings,  nor  any  part 
thereof,  nor  the  report  of  any  master,  nor  any  other  prior  pro- 
ceeding, shall  be  recited  or  stated  in  the  decree  or  order  ;  but 
the  decree  and  order  shall  begin,  in  substance,  as  follows  : 
'  This  cause  came  on  to  be  heard  (or  to  be  further  heard,  as 
the  case  may  be)  at  this  term,  and  was  argued  by  counsel  ;  and 
thereupon,  upon  consideration  thereof,  it  was  ordered,  adjudged, 
and  decreed  as  follows,  viz.'  "  6  When  a  decree  is  entered  by 
consent,  the  fact  that  consent  was  given  should  be  stated.  The 
proper  place  for  such  a  statement  is,  ordinarily,  in  the  recitals, 
unless  consent  be  only  given  to  certain  directions,  when  the  state- 
ment of  the  consent  should  immediately  precede  such  directions.6 
It  has  been  said  also  that  it  should  appear  affirmatively  upon  the 
face  of  the  decree,  that  the  defendant  was  properly  served  with 
process.7  The  declaratory  part  of  a  decree,  which  if  desired  at  all 
should  be  next  inserted,  contains  a  declaration  of  matters  of  fact, 
or  of  the  rights  of  one  or  more  of  the  parties  to  the  cause,  or  a 
statement  of  the  reason  for  the  decree  or  any  part  thereof.  This 
statement  of  reasons  is  not  usual,8  although  its  utility  has  been 
noticed,9  and  it  is  sometimes  adopted.10     Instances  of  declara- 

2  Gray  v.  Brignardello,  1  Wall.  027  ;  6  Seton  on  Decrees  (4th  ed.)  1535; 
Griswold  v.  Hill,  1  Paine,  483.                        Bartlett  v.  Wood,  9  W.  R.  817. 

3  Gray  v.  Brignardello,  1  Wall.  627.  7  Allen  v.  Blunt,  1  Blatchf.  C.  C.  480. 
§  325.   1  Darnell's  Ch.  Pr.  ch.  xxv.  8  Ex  parte  Earl  of   Ilchester,    7  Ves. 

2  Whitney  i\  Belden,  4  Paige  (N.  Y.),  348,  373;  Seton  on  Decrees  (4th  ed.), 
140;  Barclay  v.  Brown,  7  Paige  (N.  Y.),     19. 

245.  9  Bax   v.   Whithread,  16  Ves.  15,  24; 

3  Daniell's  Ch.  Pr.  ch.  xxv.  Gordon  v.  Gordon.  3  Swanst.  400,  478. 

4  Seton  on  Decrees  (4th  ed.),  9-19.  10  Gordon   v    Gordon,   3  Swanst.  400, 
6  Rule  86.        .                                           478  ;  Jenour  v.  Jenour,  10  Ves.  573  ;  At- 


§  325.]  FRAME   OF   DECREE.  475 

tions  of  matters  of  fact  are,  the  existence  and  validity  of  a  will  or 
other  instrument,11  and  the  validity  of  a  patent.12  iSo,  whenever 
there  are  interfering  patents,  and  a  suit  is  brought  by  any  person 
interested  in  any  one  of  them,  or  in  the  working  of  any  one  of 
them,  to  obtain  relief  against  the  interfering  patentee,  the  court, 
on  notice  to  adverse  parties,  and  other  due  proceedings  had  ac- 
cording to  the  course  of  equity,  may  adjudge  and  declare  either 
of  the  patents  void  in  whole  or  in  part,  or  inoperative,  or  invalid 
in  any  particular  part  of  the  United  States,  according  to  the 
interest  of  the  parties  in  the  patent  or  the  invention  patented. 
But  no  such  judgment  or  adjudication  can  affect  the  right  of 
any  person,  except  the  parties  to  the  suit  and  those  deriving 
title  under  them  subsequent  to  the  rendition  of  such  decree.13 
And  where  a  party  establishes  his  right  to  property  the  direc- 
tion to  transfer  it  to  him  is  often  preceded  by  a  declaration  of 
his  title.14  The  court  will  not  thus  decide  rights  as  between  co- 
defendants  unless  a  cross-bill  have  been  filed  for  that  purpose,15 
or  it  be  necessary  in  order  to  determine  the  rights  of  the  plain- 
tiff, or  possibly  when  the  evidence  is  clear  and  the  case  between 
them  ripe  for  decision  ; 16  and  language  in  a  decree  broad  enough 
to  determine  such  rights  will  usually  be  construed  as  merely  de- 
termining rights  as  between  the  plaintiff  and  the  defendants,  if 
no  controversy  between  the  defendants  appear  upon  the  plead- 
ings.17 The  court  will  not  make  a  declaration  of  mere  future 
rights,18  nor  as  to  the  rights  of  parties  upon  a  contingency  that 
has  not  happened,19  nor,  it  was  formerly  held,  as  to  mere  legal 
rights  ; 20  unless  such  a  determination  is  indispensable  to  the 
declaration  of  the  present  equities  of  the  parties.  It  seems,  that 
the  court  will  not  make  a  declaration  of  the  rights  of  the  parties 

torney-General  v.  Clapham,  4  De  G.  M.  &        16  Jolly  ».  Arbuthnot,  4  De  G.  &  J.  224, 

G.  591,  607;   Austin   v.  Austin,  11  Jur.  245;  Gresley  v.  Mousley,  4  De  G.  &  J.  78, 

N.  8.  530.  99 ;    Cottingham  v.  Earl  of   Shrewsbury, 

11  Seton  on  Decrees  (4th  ed.),  19,  20.  3  Hare,  627;  Seton  on  Decrees  (4th  ed.), 

12  Union  Sugar  Refinery  v.  Mathiesson,  20. 

3  Cliff.  146.  "  Graham  v.  Railroad  Co.,  3  "Wall.  704. 

«  U.  S.  R.  S.   §  4918.     See   Foster  v.  ™  Cross  v.  De  Valle,  1  Wall.  5 ;  Lady 

Lindsay,  3  Dill.  120;  Pentlarge  v.  Pent-  Langdale  v.  Bricks,  4  W.  R.  703;  Fletcher 

large,  19  Fed.  R.  817;  s.  c  22  Fed.  R.  412.  r.  Bealey,  33  W.  II.  745;  Seton  on  De- 

11  Jenour  0.  Jenour,  10  Ves.  562;    Se-  crees  (4th  ed  ),  20. 

ton  on  Decrees  (4th  ed.),  20.  19  Dowling  v.  Dowling,  L.  R.  1  Ch.  612 ; 

16  Thomas    v.    Lloyd,   25    Beav.   020;  Seton  on  Decrees  (4th  ed.),  20 

Graham  v.  Railroad  Co.,   3    Wall.   704,  •  Birkenhead  Docks  v.  Laird.  4  De  G. 

Seton    on    Decrees   (4th  ed.),   20.      See  M.  &  G.  732  ;  Webb  v.  Byng,  8  De  G.  M.  & 

§§    170,   171.  G.  033;  Seton  on  Decrees  (4th  ed.),  20. 


476  DECREES.  [CHAP.  XXIV. 

in  a  decree  taken  pro  confesso  or  upon  a  defendant's  default  at 
the  hearing.'21     The   conclusion  of  a   decree  is  its    ordering  or 
mandatory  part,  which   contains   the  specific  directions   of  the 
court  upon   the  matter   before   it.22     As    these   directions  vary 
according  to  the  nature  of  the  case  before  the  court,  it  would 
be  impossible  to  lay  down   any  definite  rule  concerning  them. 
Nothing  is  more  elastic  and  less  arbitrary  than  this  part  of  a 
decree  in  equity.     The  directions  to  the  different  parties  may  be 
separate,  reciprocal,  direct  or  inverted,  as  long  as  they  are  not 
inconsistent.23     If  there  be  several   plaintiffs  suing  jointly,  the 
decree  may  be  joint  or  several,  in  conformity  with  their  respec- 
tive rights,  as  finally  determined  ;  and  if  a  number  of  defendants, 
a  single  direction  may  be  given  to  all,  or  a  separate  direction 
or  even  a  separate  decree  against  each.24     Certain  general  rules 
governing  particular  kinds  of  decrees  may,  however,  be  stated. 
If  the  decree  be  for  the  performance  of  any  specific  act  except 
the  payment  of  money,  as,  for  example,  for  the  execution  of  a 
conveyance  of  land  or  the  delivering  up  of  deeds  or  other  doc- 
uments, the  decree  must  prescribe  the  time  within  which  the  act 
must  be  done.25     Decrees  for  an  account  should  always  specify 
the  time  from   which   the  account   is  to  be  taken.26     "  Every 
decree  for  an  account  of  the  personal  estate  of  a  testator  or 
intestate  shall  contain  a  direction  to  the  master  to  whom  it  is 
referred  to  take  the  same,  to  inquire  and  state  to  the  court  what 
parts,  if  any,  of  such  personal  estate  are  outstanding  or  undisposed 
of,  unless  the  court  shall  otherwise  direct."  27     The  old  form  of  a 
decree  to  set  aside  a  forged  instrument  was  that  the  document 
"  be  cut,  damned  and  cancelled."  28     In  suits  in  equity  for  the 
foreclosure  of  mortgages,  a  decree  may  be  rendered  for  any  bal- 
ance that  may  be  found  due  to  the  complainant  over  and  above 
the  proceeds  of  the  sale  or  sales,  and  execution  may  issue  for  the 
collection  of  the  same  as  is  provided  in  the  eighth  equity  rule.29 

21  Jennings  v.  Simpson,  1  Keen,  404.  Munford,    (Va.)    821;   Elliott  v.  Pell,   1 

2-  Daniell's   Chancery  Practice,  chap.  Paige  (N.  Y.),  263. 
xxv.  K  Rule  8- 

23  Lingan  r.  Henderson,  1  Bland  (Md.),         2s  Cummins  v.  Adams,  2  Irish  Eq.  393. 
236,  275  ;    Hodges   v.  Mullikin,  1  Bland         27  Ruie  73. 

(Md.),  503,  507 1  Owings'  Case,  1  Bland  28  Bishop  of  Winchester    v.  Fournier, 

(Md.),  370,  404.  2Ves.  Sen.  445;  Fitton  v.  Earl  of  Maccles- 

24  Linffan  v.  Henderson,  1  Bland  (Md.),  field,  1  Vern.  287,  292 ;  Seton  on  Decrees 
236,  256;    Hodges  v.  Mullikin.  1   Bland  (4th  ed.),  1346. 

(Md.),  503,  507;   Quarles   v.  Quarles,   2        2»  Ruie  92. 


§  327.]  WHO   ARE   GIVEN   COSTS.  477 


CHAPTER  XXV. 

COSTS   AT   LAW   AND    IN    EQUITY. 

§  326.  Definition  of  Costs  and  Distinction  between  Costs  at  Law 
and  in  Equity.  —  Costs  is  the  term  given  to  the  sum  of  money 
which  is  paid  to  the  successful  party  to  a  litigation,  to  reimburse 
him  for  his  expense  and  trouble  in  the  same.  The  costs  of  an 
action  at  law  are  governed  by  fixed  and  arbitrary  rules.1  In 
equity,  the  award  or  denial  of  costs  is  always  in  the  discretion 
of  the  court;2  and  so  very  frequently  is  their  amount  when 
awarded.3  When,  however,  it  is  said,  as  it  often  is,  that  the 
award  of  costs  in  equity  is  purely  discretionary,  it  should  not 
be  supposed  that  courts  of  equity  are  governed  by  no  fixed 
principles  in  their  decisions  relative  to  the  costs  of  proceedings 
before  them.  All  that  is  meant  by  the  expression,  is  that,  in 
awarding  costs,  they  will  take  into  consideration  the  circum- 
stances of  the  cases  before  them  and  the  situation  or  conduct  of 
the  parties,  and  exercise  with  reference  to  these  points  a  dis- 
cretion governed  by  certain  reasonably  definite  rules,  the  en- 
forcement of  which  is  not  dependent  upon  the  caprice  of  the 
judge  by  whom  each  cause  happens  to  be  heard,  but  is  often  a 
ground  of  review  by  an  appellate  tribunal.4 

§  327.  Who  are  given  Costs.  —  Courts  of  common  law  inva- 
riably award  costs  to  the  successful  party,  except  in  the  cases 
hereafter  stated.1  Courts  of  chancery  in  general  follow  the  rule 
of  the  civil  law,  victus  victori  in  expensis  condemnatus  est ;  and 
decree  the  payment  of  costs  by  the  unsuccessful  to  the  successful 
parties  to  a  suit  before  it.2     It  often  happens,  however,  that  they 

§  326.   l  Hathaway  v.  Roach,  2  W.  &        §  327.   »  Hathaway  v.  Roach,  2  W.  & 

M.  63.  M.  63. 

2  Riddle  v.  Mandeville,  6  Cranch,  86.  2  Wooster  v.  Handy,  23  Fed.  R.  49; 

8  Trustees   v.   Greenough,    105  U.  S.  Am.   Diamond    Rock    Co.    v.    Sheldon, 

527;  Central  Railroad  v.  Pettus,  113  U.S.  28  Fed.  R.  217;  Vancouver  v.  Bliss,  11 

116.  Ves.  458;  Staines  v.  Morris,  1V.&B.8; 

*  Brooks  u.Byam,  2  Story,  553;  Trus-  Millington  v.  Fox,   3  M.  &  C.  338,358; 

tees  v.  Greenough,  105  U.  S.  527  ;  Central  Hunter  v.  Town  of  Marlboro',  2  W.  &  M. 

R.  R.  v.  Pettus,  113  U.  S.  116.  168;  Hovey  v.  Stevens,  3  W.  &  M.  17. 


478  COSTS   AT   LAW    AND   IN    EQUITY.  [CHAP.  XXV. 

depart  so  far  from  this  rule  as  to  deny  costs  to  the  successful 
party,  and,  in  certain  classes  of  cases,  they  will  even  compel  him 
to  pay  costs  to  those  against  whom  he  obtains  a  decree.3  In 
some  cases  the  costs  may  be  apportioned.4  Under  no  circum- 
stances, however,  will  a  court  dismiss  the  plaintiff's  bill  and 
award  him  costs  against  a  defendant.5  If  a  plaintiff  begins  or 
continues  a  suit  after  he  has  had  a  full  and  unconditional  offer  of 
all  that  he  is  entitled  to,  he  may  be  denied  costs,  not  only  of  all 
the  proceedings  taken  by  him  after  such  an  offer,6  but  also  of  the 
whole  suit.7  This  principle  applies  to  bills  for  an  accounting ; 
when,  although  on  account  of  the  uncertain  state  of  the  account 
the  defendant  may  not  be  able  to,  and  so  does  not,  make  a  tender 
of  the  balance  due  from  him,  yet  if  he  has  shown  a  willingness 
to  account,  the  court  may  relieve  him  from  paying  costs.8  If  a 
plaintiff  charge  fraud  which,  though  he  establishes  his  case  on 
other  grounds,  he  fails  to  prove ; 9  or,  in  some  cases,  if  he  claims 
relief  more  extensive  than  that  to  which  he  is  entitled;10  or  if, 
on  account  of  public  policy  or  otherwise,  he  is  allowed  to  obtain 
relief  in  a  matter  wherein  he  himself  acted  unlawfully  or  dis- 
honorably ; n  or  if  he  have  been  guilty  of  laches,12  which  do  not 
bar  his  claim  entirely,  —  he  will  be  denied  costs.  A  defendant 
will  also  be  denied  costs  when  successful  under  similar  circum- 
stances;13 for  instance,  when  the  plaintiff's  bill  is  clearly  bad 
and  he  answers  instead  of  demurring.14  The  English  rule  seems 
to  be  that  it  is  beneath  the  dignity  of  a  sovereign  to  demand 
costs,  and  that,  therefore,  when  he  is  successful  in  a  suit,  his 
counsel  will  waive  all  claim  for  any.15  Instances  when  costs 
have  not  been  given  to  a  successful  party,  because  the  situation 

3  Grattan  v.  Appleton,  3  Story,  755;  9  Wright  v.  Howard,  1  Sim.  &  S.  190; 

Brooks  v.  Bvam,  2  Story,  553.  Scott   v.   Dunbar,   1   Molloy,  442.      See 

*  Farwell  v.  Kerr,  28  Fed.  R.  345 ;  Lip-  Fisher  v.  Boody,  1  Curtis,  206,  223. 

pincott  v.  Shaw  Carriage  Co.,  34  Fed.  R.  10  Baldwin  i;.  Ely,  9  How.  580. 

570.  u  Debenham  v.  Ox,  1  Ves.  Sen.  276 ; 

6  Barns  v.  Omally,  4  McLean,  576.  Davis  v   Symonds,  1  Cox  Eq.  402. 

6  Millington  v.  Fox,  3  M.  &  C.  338,  12  Anon.,  2  Atk.  14 ;  Lee  v.  Brown,  4 
352 ;  Loveridge  v.  Lamed,  7  Fed.  R.  294 ;  Ves.  362. 

Calkins  v.  Bertrand,  8  Fed.  R.  755.  13  Attorney-General    v.  Brewers'  Co., 

7  MUHno-ton  v.  Fox,  3  M.  &  C.  338,  1  P.  Wms.  376 ;  Bunker  v.  Stevens,  26 
352.  Fed.  R.  245. 

8  Parrot  v.  Treby,  Prec.  in  Ch.  254 ;  ™  Brooks  v.  Byam,  2  Story,  553 ;  Har- 
Bennett  v.  Attkins,  1  Y.  &  C.  247  ;  Ash-  land  v.  Bankers'  &  M.  Tel.  Co.,  32  Fed.  R. 
burnham  v.  Thompson,  13  Ves.  402.    But  305. 

see  Daniell's  Ch.  Pr.  (5th  Am.  ed.)  1896,         13  Emperor  of  Austria  v.  Day,  2  Giff. 
!397  628;  s.  c.  3  De  G.  F.  &  J.  217. 


§  327.]  WHO   ARE   GIVEN   COSTS.  479 

of  his  adversary  appealed  to  the  sympathy  of  the  court,  were 
when  the  decision  of  the  case  involved  the  decision  of  a  difficult 
and  doubtful  question  of  law,16  especially  in  suits  brought  for 
the  specific  performance  of  a  contract  affecting  the  sale  of 
land;17  when  the  court  enforced  a  contract  made  upon  a  very 
inadequate  consideration;18  and  in  other  cases  of  peculiar  hard- 
ship.19 A  change  of  the  law  by  a  ruling  of  the  Supreme  Court 
subsequent  to  the  filing  of  the  bill  has  been  held  no  ground  for 
refusing  the  defendant  costs.20 

The  Revised  Statutes  provide  that  when  in  a  Circuit  Court 
a  plaintiff  in  an  action  at  law  originally  brought  there,  or  a  peti- 
tioner in  equity  other  than  the  United  States,  recovers  less  than 
the  sum  or  value  of  five  hundred  dollars,  exclusive  of  costs,  in 
a  case  which  cannot  be  brought  there  unless  the  amount  in  dis- 
pute exclusive  of  costs  exceeds  said  sum  or  value,  he  shall  not 
be  allowed  costs,  and  the  court  may  in  its  discretion  award  costs 
against  him.21  This  statute  does  not  apply  to  a  suit  removed 
from  a  State  court.22  If  the  amount  recovered  is  less  than  two 
thousand,  but  more  than  five  hundred  dollars,  the  section  does  not 
apply,  although  the  jurisdictional  amount  is  now  the  former  sum.23 

In  suits  to  adjust  claims  against  the  United  States,  costs  can- 
not be  allowed  unless  the  government  puts  in  issue  the  right  of 
the  plaintiff  to  recover;  and  then  only  in  the  discretion  of  the 
court.24  Costs  in  such  a  suit  include  only  "  what  is  actually 
incurred  for  witnesses  and  summoning  the  same,  and  fees  paid 
to  the  clerk  of  the  court." 25 

When  upon  a  reference  the  master  reports  in  favor  of  the 
plaintiff  for  nominal  damages,  the  award  of  costs  is  in  the  dis- 
cretion of  the  court,  and  depends  upon  the  peculiar  circumstances 
of  each  case.26 

The  successful  party  to  a  suit  may  also  be  obliged  to  pay  costs  to 
an  opponent  who  has  not  acted  unconscientiously  in  three  classes 

18  Grattan   v.  Applcton,  3  Story,  755 ;        21  U.  S.  R.  S.  §  968. 

Rose  v.  Calland,  5  Ves.  186.  '•"  Field  v.  Schell,  4  Blatchf.  435;  Ellis 

17  Rose  v.  Calland,  5  Ves.  186  ;  White  v.  Jarvis,  3  Mason,  457  ;  Kreager  v.  Judd, 

t;.  Foljambe,  11  Ves.  337  ;  Willcox  v.  Bel-  6  Fed.  R.  27. 

laers,  T.  &  R.  491.  23  Eastman  v.  Sherry,  37  Fed.  R  844. 

is  Burrowes  v.  Lock,  10  Ves.  470.  2*  24  St.  at  L.  eh.  359,  p.  508,  §  L5. 

19  Lillia  v.  Airey,  1  Ves.  Jr.  277  ;  Shales        25  24  St.  at  L.  ch.  359,  p.  508,  §  15. 

v.  Barring'on,   1    P.  Wins.  481;    Drybut-  *&  Calkins  v.  Bertrand,  8  Fed.  R.  755; 

ter  v.  Bartholomew,  2  I\  Wms.  127.  Everest  v.  Buffalo  Lubricating  Oil  Co., 

25  Fargo  v.  South  Eastern  Ry.  Co.,  28  31  Fed.  R.  742 ;  Hill  v.  Smith,  32  Fed.  R. 

Fed.  R.  906.  753. 


480  COSTS   AT   LAW   AND   IN   EQUITY.  [CHAP.  XXV 

of  cases:  when  the  former  has  acted  unconscientiously  in  the  suit 
or  in  the  matters  which  gave  rise  to  it ; 27  when  a  defendant  has 
been  necessarily  made  a  party  to  a  suit  in  which  he  has  no  direct 
personal  interest,  —  for  example,  an  heir-at-law,  who  is  a  passive 
defendant  to  a  suit  to  prove  a  will;28  and  when  a  bill  is  filed  to 
redeem  a  pledge  or  relieve  an  estate  from  the  burden  of  a  mort- 
gage or  other  incumbrance.29  In  cases  where  the  finally  success- 
ful party  is  obliged  without  his  fault  to  pay  costs  to  one  of  the 
others,  if  the  suit  was  made  necessary  by  the  misconduct  of  one 
of  the  defendants,  the  latter  is  obliged  to  repay  the  amount  of 
those  costs  to  the  first.30  Thus,  the  costs  paid  out  of  the  fund  to 
the  plaintiff  in  a  suit  of  interpleader  are  usually  decreed  to  be 
repaid  by  the  unsuccessful  defendant.31  In  suits  founded  upon 
letters-patent  for  inventions,  when  the  patentee  has  claimed  in 
his  specification  that  he  was  the  original  inventor  of  more  than 
he  did  first  invent,  he  cannot  recover  costs  unless  he  has  filed  a 
proper  disclaimer  in  the  Patent  Office  before  the  commencement 
of  the  suit.32  When  an  action  at  law  or  suit  in  equity  is  dis- 
missed in  the  court  of  first  instance  for  want  of  jurisdiction  over 
the  person  of  the  defendant  or  over  the  subject-matter,  or  for  a  lack 
of  the  requisite  difference  of  citizenship,  no  costs  are  allowed.33 
When  a  case  removed  from  a  State  court  is  remanded  for  want 
of  jurisdiction  in  the  Circuit  Court,  the  right  to  costs  is  secured 
by  the  bond  filed  with  the  petition  for  the  removal.34  No  costs 
are  granted  in  a  case  in  the  Circuit  Court  where  the  judges  are 
divided.35  In  the  Supreme  Court,  when  a  judgment  or  decree  is 
reversed  for  want  of  jurisdiction  in  the  court  below,  costs  are 
imposed  upon  the  party  who  sought  the  jurisdiction  of  the  court 
below,  either  by  original  process  or  by  removal,  whether  he  is 
respondent  or  appellant.36 

27  Wright  v.  Howard,  1  Sim.  &  S.  190.         w  Burnham  v.  Rangeley,  2  W.  &  M. 

28  Crew  v.  Jolliff,  Prec.  in  Ch.  93  ;  Lux-    417  ;  Pentlarge  v.  Kirby,  20  Fed.  It.  898. 
ton  v.  Stephens,  3  P.  Wms.  373.  But  see  U.   S.  v.  Treadwell,  15  Fed.  R. 

29  Taner  v.  Ivie,  2  Ves.  Sen.  466,  468.       532;   Cooper  v.  New  Haven  Steamboat 
3»  Martinius  v.  Helmuth,2  V.  &  B.  412,     Co.,  18  Fed.  R.  588. 

note.     See  Brodie  v.  St.  Paul,  1  Ves.  Jr.  34  See  §  3  of  Judiciary  Act  of  1875,  as 

326 ;    Badeau  v.   Rogers,    2    Paige    Ch.  amended  in  1887  ;  24  St.  at  L.  ch.  373. 

(N.  Y.)  209.  ^  Veazie  v.   Williams,  3   Story,  611, 

si  Martinius  v.  Helmuth,  2  V.  &  B.  412,  632. 

note;    Badeau  v.   Rogers,   2  Paige    Ch.  38  Mansfield  C.  &L.M.  Ry.  Co.  v.  Swan, 

(N.  Y.)  209.  HI  U.S. 379;  Continental  Insurance  Co. 

32  U.  S.  R.  S.  §  4922 ;  Proctor  v.  Brill,  v.  Rhoads,  119  U.  S.  237 ;  Peper  v.  For- 

16  Fed.  R.  791.  dyce,  119  U.  S.  469 ;  Everhart  v.  Hamil- 


§  330.]  attorney's  fees.  481 

§  328.  Classification  of  Costs.  —  Different  principles  regulate 
the  amount  of  costs  according  as  they  are  decreed  to  be  paid  by- 
one  party  to  another,  or  out  of  a  fund  in  court.1  In  the  former 
case  costs  are  said  to  be  taxed  as  between  party  and  party,  in  the 
latter  as  between  solicitor  and  client.2 

§  329.  Costs  as  between  Party  and  Party.  —  Costs  as  between 
party  and  party  are  regulated  by  statute.  They  are  the  amount 
of  the  "  bill  of  fees  of  the  clerk,  marshal,  and  attorney,  and  the 
amount  paid  printers  and  witnesses,  and  lawful  fees  for  exempli- 
fications and  copies  of  papers  necessarily  obtained  for  use  on 
trials."  » 

§  330.  Attorney's  Fees.  —  The  Revised  Statutes  fix  the  follow- 
ing sums  to  be  taxed  as  attorney's  fees  in  a  bill  of  costs  between 
party  and  party :  "  On  a  trial  before  a  jury,  in  civil  or  criminal 
causes,  or  before  referees,  or  on  a  final  hearing  in  equity  or  ad- 
miralty, a  docket  fee  of  twenty  dollars,  provided  that  in  cases  of 
admiralty  and  maritime  jurisdiction,  where  the  libellant  recovers 
less  than  fifty  dollars,  the  docket  fee  of  his  proctor  shall  be  but 
ten  dollars.  In  cases  at  law,  when  judgment  is  rendered  with- 
out a  jury,  ten  dollars.  In  cases  at  law,  when  the  cause  is  dis- 
continued, five  dollars.  For  scire  facias  and  other  proceedings 
on  recognizances,  five  dollars.  For  each  deposition  taken  and 
admitted  in  evidence  in  a  cause,  two  dollars  and  fifty  cents.  For 
services  rendered  in  cases  removed  from  a  District  to  a  Circuit 
Court  by  writ  of  error  or  appeal,  five  dollars."  1 

It  has  been  held  that  a  docket  fee  can  be  taxed  for  each  hear- 
ing before  the  court  after  bill,  answer,  and  replication  have  been 
filed,2  but  not  for  a  hearing  upon  a  demurrer  which  is  overruled, 
when  the  defendant  has  leave  to  answer  and  an  answer  is  filed.3 
When  a  demurrer  is  sustained,  a  docket  fee  is  allowed.4  When 
a  motion  to  remand  is  granted,  a  docket  fee  is  allowed.5  To  con- 
stitute "  a  final  hearing  in  equity  or  admiralty,"  there  must  be  a 

ton  College,  120  U.  S.  223;  Kin?  Bridge        §  320.   i  U.  S.  R.  S.  §  083.     Rut  see 

Co.  v.  Washington  County,  120  U.  S.  225;  SpauUling  v.  Tucker,  2  Sawyer,  50. 
Peninsula  Iron  Co.  v.  Stone,  121  US.         §  330.    1  U.  S.  R.  S.  §  824.     Tl.e  same, 

631  ;  Chapman  v.  Barney,  128  U.  S.  677.  ami  the  three  following  sections  also  regu- 

§328.  i  Trustees    v.    Greenough.  105  late  the  fees  of  district  attorneys. 
U.  S.  527;  Central  R.  R.  v.  Pettus,  113         *  American  Diamond  Hock  Boring  Co, 

U-  s-  ll6-  v.  Sheldon,  28  Fed.  R.  217. 

2  Trustees  v.   Greenough,   105   U.    S.  »  McLean  v.  Clark,  23  Fed   R  801 

527;   Central  R.  R.  v.  Pettus,  113  U.  S.  *  Price  v.  Coleman,  22  Fed.  R.  094. 

116,  6  Josslyn  v.  Phillips,  20  Fed.  R  481. 

31 


482  COSTS   AT   LAW   AND    IN    EQUITY.  [CHAP.  XXV. 

hearing  of  the  cause  upon  its  merits.6  No  docket  fee  is  allowed 
for  a  hearing  upon  an  interlocutory  application.7  When  a  bill  is 
dismissed  without  a  hearing  no  docket  fee  is  allowed.8  When  a 
bill  is  taken  as  confessed,  there  must  be  a  hearing  before  the  de- 
cree, and  consequently  the  complainant  is  entitled  to  tax  a 
docket  fee.9  It  has  been  held  that  no  docket  fee  will  be  allowed 
on  the  dismissal  of  a  bill  for  want  of  prosecution  ; 10  nor  for  a 
reference  upon  a  motion  for  an  interlocutory  injunction;11  nor 
for  a  hearing  upon  a  petition  for  leave  to  intervene  ; 12  nor  when 
the  complainant  has  the  bill  dismissed  upon  his  own  motion  before 
a  final  hearing.13  In  a  case  where,  after  an  interlocutory  decree 
requiring  the  defendant  to  account,  the  plaintiff  moved  for  a  dis- 
missal of  his  bill,  he  was  obliged  to  pay  the  defendant  a  docket 
fee  as  well  as  other  costs.14  It  has  been  said  that  no  docket  fee 
should  be  allowed  when  the  attorney  who  appeared  and  acted 
for  the  successful  party  throughout  the  case  was  not  admitted  to 
practise  in  the  court  where  the  case  was  pending,  nor  admitted 
to  practise  in  the  Supreme  Court  of  the  United  States  before 
the  filing  of  the  general  replication.15  No  docket  fee  is  allowed 
to  a  party,  not  an  attorney,  who  conducts  his  own  case.16 

The  fee  for  taking  a  deposition  is  only  allowed  for  a  deposition 
taken  de  bene  esse  for  use  in  the  final  hearing,17  not  for  oral  testi- 
mony in  court;18  nor,  perhaps,  for  a  deposition  taken  before  a 
master  or  examiner ;  19  nor  for  a  deposition  taken  for  use  upon 

s  Wooster  v.  Handy,  23  Fed.  R.  49;  &  P.  Ry.  Co.,  32  Fed.  R.  684;  Mo.  Pac. 

Goodyear  D.  V.  Co.  v.  Osgood,  2  B.  &  A.  Ry.  Co.  v.  Texas  &  P.  Ry.  Co.,  38  Fed. 

Pat.  Cas.  529  ;  Coy  v.  Perkins,  13  Fed.  R.  R.  775. 

Ill  ;  Yale  Lock  Manuf.  Co.  v.  Colvin,  14         13  Coy  v.  Perkins,  13  Fed.  R   111 ;  Yale 

Fed.  R.  269.    Contra,  Goodyear  v.  Sawyer,  Lock  Manuf.  Co.  ».  Colvin,  14  Fed.  R. 

17  Fed.  R.  2.  269;  Wooster  v.  Handy,  23  Fed.  R.  49; 

7  Doughty  v  West,  B.  &  C  Manuf.  Calm  v.  Qung  Wah  Lung,  28  Fed.  R.  396; 
Co.,  8  Blatchf.  107 ;  Central  Trust  Co.  v.  Ryan  v.  Gould,  32  Fed.  R.  754.  Contra, 
Wabash,   St.  L.  &  P.  R.  Co.,  32  Fed.  R.  Goodyear  v.  Sawyer,  17  Fed   R.  2. 

684.  14  Goodyear  v.  Sawyer,  17  Fed.  R.  2. 

8  "Wooster  v.  Handy,  23  Fed.  R,  49 ;  15  Goodyear  D.  V.  Co.  v.  Osgood,  13 
Goodvear  D.  V.  Co.  v.  Osgood,  2  B.  &  A.     Off.  Gaz.  325. 

Pat.  Cas.  529  ;  Coy  v.  Perkins,  13  Fed.  R.  16  Gorse  v.  Parker,  36  Fed.  R.  840. 

Ill  ;  Yale  Lock  Manuf.  Co.  v.  Colvin,  14  17  Wooster  v.  Handy,  23  Fed.  R.  49,  57 ; 

Fed.  R.  269.    Contra,  Goodyear  v.  Sawyer,  Re   Strauss   v.    Meyer,  22  Fed.   R.  407  ; 

17  Fed.  R.  2.  Tuck  v.  Olds,  29  Fed.  R.  883 ;  Troy  Iron 

9  Andrews  v.  Cole,  20  Fed.  R.  410.  &  Nail  Factory  v.  Corning,  7  Blatchf.  16. 
i"  Wooster  v.   Handy,  23  Fed.  R.  49 ;  18  Troy  Iron  &  Nail  Factory  v.  Corning, 

Wigton  v.  Brainerd,  28  Fed.  R.  29.  7  Blatchf.  16. 

ii  Doughty  v.  W.  B.  &  C.  Manuf.  Co.,  19  Strauss  v.  Meyer,  22  Fed.  R.  467  ; 

8  Blatchf.  107.  Tuck  v.  Olds,  29  Fed.  R.  883;  Mo.  Pac. 

12  Central  Trust  Co.  v.  Wabash,  St.  L.  Ry.  Co.  v.  Texas  &  P.  Ry.  Co.,  38  Fed. 


§  330.]  attorney's  fees.  433 

an  interlocutory  application,  such  as  an  application  for  leave  to 
intervene,20  or  an  application  for  an  interlocutor}''  injunction,21 
or  an  application  to  punish  a  person  for  a  contempt.22  In  a 
case  where  the  deposition  of  a  witness  who  lived  more  than 
one  hundred  miles  from  the  place  of  trial  had  been  taken  de 
bene  esse  by  the  plaintiff,  and  subsequently  the  defendant  per- 
suaded him  to  appear  upon  the  trial,  so  that  the  deposition  was 
not  read  in  evidence  ;  the  fee  for  and  the  expense  of  taking 
the  deposition  were  allowed  to  be  taxed  by  plaintiff.23  When 
the  testimony  of  several  witnesses  is  taken  by  the  same  officer 
and  returned  to  court  under  the  same  enclosure,  the  testimony 
of  each  witness  is  considered  as  a  separate  deposition.24  As 
to  the  taxation  of  the  fee  for  taking  a  deposition  which  is 
admitted  in  evidence  in  several  suits,  the  decisions  are  not 
harmonious.  It  seems  settled  that  when,  by  stipulation,  a 
deposition  is  taken  once  for  use  in  several  suits,  in  each  of 
which  it  is  entitled,  and  in  each  of  which  the  witness  is  sworn, 
a  deposition  fee  may  be  taxed  in  each  suit.25  Where,  however,  a 
deposition  taken  in  one  suit  is  by  stipulation  read  in  another,  the 
rule,  except  in  the  district  of  Tennessee26  and  perhaps  in  that  of 
New  Jersey,27  would  seem  to  be  that  the  fee  can  only  be  taxed  in 
the  first  suit.28  The  expenses  of  taking  the  deposition  cannot  be 
deducted  from  the  attorney's  fee.29  It  has  been  held  that  the  fee 
cannot  be  taxed  in  favor  of  a  party  who  did  not  appear  by  an  attor- 
ney at  the  taking  of  the  deposition.30  The  attorney's  costs  belong 
to  the  party,  not  to  his  attorney,  and  proceedings  to  collect  them 
should  be  taken  in  the  name  of  the  party.31  In  the  absence  of  a 
special  agreement,  however,  the  value  of  the  attorney's  services  to 
his  client  will  be  considered  as  worth  at  least  the  taxable  costs.32 

775.     Contra,  Ingham  v.  Pierce,  37  Fed.  Fed.  R.  660 ;   Green  v.  French,  5  N.  J. 

R.  647.  L.  J.  228. 

M  Central  Trust  Co.  v.  Wabash,  St.  L.  20  jorman  v.  Stewart,  12  Fed.  R.  271  ; 

&  P.  Ry.  Co,  32  Fed.  R,  684;  Mo.  Pac.  Archer  v.  Hartford  Fire  Ins.  Co.,  31  Fed. 

Ry.  Co.  v.  Texas  &  P.  Ry.  Co.,  38  Fed.  R.  660. 

R.  775.  27  Green  v.  French,  5  N.  J.  L.  J.  228. 

21  Stinipson  v.  Brooks,  3  Blatchf.  456.  2S  Woostcr  v.  Handy.  23  Fed.  R.  49, 

22  Spill  v.   Celluloid    Manuf.   Co.,   28  58;  Am.  Diamond  R.  B.  Co.  v.  Sheldon. 
Fed.  R.  870.  28  Fed.  R.  217  ;    Winegar   v.  Calm,  29 

23  Hunter  v.   International   Ry.   Imp.  Fed.  It.  676. 

Co.,  28  Fed.  R.  842.  29  Broyles  v.  Buck,  37  Fed.  R.  137. 

24  Broyles    v.    Buck,   37   Federal   Re-        30  Winegar  v.  Calm,  29  Fed.  R.  676. 
porter,  137.  31  Broyles  v.  Buck,  37  Fed.  R.  137. 

M  Wooster  v.  Handy,  23  Fed.  R.  49,        82  Celluloid  Manuf.  Co.  v.    Chandler, 
63 ;  Archer  v.  Hartford  Fire  Ins.  Co.  31     27  Fed.  R.  9. 


484  COSTS   AT   LAW   AND   IN    EQUITY.  [CHAP.  XXV. 

§331.  Clerk's  Fees.  —  The  fees  of  the  clerk  of  the  Supreme 
Court  are  fixed  by  rule  as  follows :  "  For  docketing  a  case  and 
filing  and  indorsing  the  transcript  of  the  record,  five  dollars. 
For  entering  an  appearance,  twenty-five  cents.  For  entering  a 
continuance,  twenty-five  cents.  For  filing  a  motion,  order,  or 
other  paper,  twenty-five  cents.  For  entering  any  rule,  or  for 
making  or  copying  any  record  or  other  paper,  twenty  cents  per 
folio  of  each  one  hundred  words.  For  transferring  each  case  to 
a  subsequent  docket  and  indexing  the  same,  one  dollar.  For 
entering  a  judgment  or  decree,  one  dollar.  For  every  search  of 
the  records  of  the  court,  one  dollar.  For  a  certificate  and  seal, 
two  dollars.  For  receiving,  keeping,  and  paying  money  in  pur- 
suance of  any  statute  or  order  of  court,  two  per  cent,  on  the 
amount  so  received,  kept,  and  paid.  For  an  admission  to  the 
bar  and  certificate  under  seal,  ten  dollars.  For  preparing 
the  record  or  a  transcript  thereof  for  the  printer,  indexing  the 
same,  supervising  the  printing,  and  distributing  the  printed 
copies  to  the  justices,  the  reporter,  the  law  libraiy,  and  the  par- 
ties or  their  counsel,  fifteen  cents  per  folio.  For  making  a  man- 
uscript copy  of  the  record,  when  required  under  Rule  10,  twenty 
cents  per  folio,  but  nothing  in  addition  for  supervising  the  print- 
ing. For  issuing  a  writ  of  error  and  accompanying  papers,  five 
dollars.  For  a  mandate  or  other  process,  five  dollars.  For  every 
copy  of  any  opinion  of  the  court,  or  any  justice  thereof,  certified 
under  seal,  one  dollar  for  every  printed  page,  but  not  to  exceed 
five  dollars  in  the  whole  for  every  copy." 1  In  all  cases  the 
plaintiff  in  error  or  appellant,  on  docketing  a  case  and  filing  the 
record,  must  enter  into  an  undertaking  to  the  clerk,  with  surety 
to  his  satisfaction  for  the  payment  of  his  fees,  or  otherwise  satisfy 
him  in  that  behalf.2  If  the  clerk  demand  the  fees  in  advance, 
they  must  be  paid.3  The  proper  method  of  collecting  such  costs 
from  the  parties  or  their  sureties,  is  to  issue  an  attachment 
against  them,  respectively,  to  compel  payment  of  fees.4 

The  fees  of  the  clerks  of  Circuit  and  District  Courts,  which 
are  payable  by  the  parties  to  civil  suits  and  proceedings  at  law 
and  in  equity,  and  taxed  as  part  of  the  costs  therein,  are  fixed 
by  statute  as  follows  :  — 

§  331.   *  Supreme  Court  Rule  24;  22  8  Steever  v.  Riekman,  109  U.  S.  74. 

St.  at  L.  ch.  443,  p.  631.  4  Supreme  Court  Rule  10. 

2  Supreme  Court  Rule  10. 


S  331.]  clerk's  fees.  485 

"  For  issuing  and  entering  every  process,  commission,  sum- 
mons, capias,  execution,  warrant,  attachment,  or  other  writ, 
except  a  writ  of  venire,  or  a  summons  or  subpoena  for  a  wit- 
ness, one  dollar."0 

"For  issuing  a  writ  of  summons  or  subpoena,  twenty-five 
cents."6 

"  For  filing  and  entering  every  declaration,  plea,  or  other  paper, 
ten  cents."7  No  paper  is  considered  filed  unless  it  has  the 
proper  indorsement  by  the  clerk.8  Merely  placing  a  paper  in  the 
court  papers  is  no  filing.9  When  it  is  necessary  to  enter  on 
the  calendar  a  note  of  such  filing,  an  additional  fee  of  fifteen  cents 
is  allowed.10  The  clerk  is  entitled  to  ten  cents  for  every  sepa- 
rate voucher  filed  by  him,  though  such  vouchers  are  filed  with  his 
report  of  moneys  on  hand.11 

"  For  administering  an  oath  of  affirmation,  except  to  a  juror, 
ten  cents."  12 

"  For  taking  an  acknowledgment,  twenty-five  cents."  13 

"  For  taking  and  certifying  depositions  to  file,  twenty  cents  for 
each  folio  of  one  hundred  words."  14  Where  a  suit  is  voluntarily 
dismissed  by  the  complainant,  without  a  submission  or  hearing, 
on  a  settlement  of  the  case  at  complainant's  costs  with  consent 
of  the  defendant  and  the  attorneys  of  both  parties,  the  solicitor's 
fees  for  taking  depositions  are  not  allowable  ;  but  the  clerk's  fees 
are  a  proper  charge  under  a  decree  dismissing  the  case  at  com- 
plainant's costs.15 

"  For  a  copy  of  such  deposition  furnished  to  a  party  on  request, 
ten  cents  a  folio."  16  A  party  may  tax  the  fee  paid  for  a  copy  of 
his  own  deposition,  for  use  in  printing  the  evidence,  as  required 
by  a  rule.17 

"For  entering  any  return,  rule,  order,  continuance,  judgment, 
decree,  or  recognizance,  or  drawing  any  bond,  or  making  any 
record,    certificate,    return,    or   report,    for    each    folio,    fifteen 

5  U.  S.  R.  S.  §  828.  Henry  Amy  &  Co.  v.  Shelby  County,  1 

o  U.  S.  R.  S.  §  828.  Flippin,  104. 

*  U.  S.  R.  S.  §  828.  n  Goodrich  v.  U.  S.,  35  Fed.  R.  193. 

s  Erwin  v.  U.  S.,  37  Fed.  R.  470,  484  ;  *-  U.  S.  R.  S.  §  828. 
Henry  Amy  &  Co.  v.  Shelby  County,  1  13  U.  S.  R.  S.  §  828. 
Flippin,  104.  i4  U.  S.  R.  S.  §  828. 

»  Erwin  u.  U.  S.,  37  Fed.  R.  470,  484  ;        15  Calm  v.  Qung  Wah  Lung,  28  Fed. 

Henry  Amy  &  Co.  v.  Shelby  County,  1  R.  396. 
Flippin,  104.  ™  U.  S.  R.  S.  §  828. 

i "  Erwin  v.  U.  S.,  37  Fed.  R.  470,  481 ;         17  Brewster  v.  Shuler,  38  Fed.  R.  519. 


48G  COSTS   AT   LAW   AND   IN   EQUITY.  [CHAP.  XXV. 

cents."  18  When,  by  order  of  the  court,  the  clerk  enters  upon 
the  minutes  a  proceeding  in  a  court  of  official  character,  such  as 
a  memorial  concerning  the  death  of  a  public  man,  the  fee  for 
entering  is  properly  chargeable  to  the  government.19  When  the 
number  of  words  is  less  than  one  hundred,  they  are  counted  a 
folio ;  and  as  such  entry  is,  in  fact,  a  record,  the  departmental 
construction  is  the  proper  one,  which  gives  the  clerk  ten  cents 
for  filing  a  paper,  and  fifteen  cents  for  the  record  entry  in  the 
calendar.20  The  clerk  may  charge  fees  in  an  equity  cause,  as  to 
absent  defendants,  as  to  whom  the  cause  is  continued.21  Where 
a  cause,  after  being  referred  to  an  auditor,  is,  with  the  sanction 
of  the  court,  settled  by  the  parties,  and  entry  made,  "  Dismissed, 
at  defendant's  costs,  by  consent,"  the  process  and  pleadings  in 
the  State  court,  together  with  the  proceedings  for  removal  sent 
up  in  the  transcript,  and  the  proceedings  in  the  Federal  court, 
should  be  entered  upon  the  final  record ;  and  the  clerk  may 
properly  charge  fifteen  cents  per  folio  for  such  entry.22  A  judg- 
ment is  an  order  of  the  court  within  the  meaning  of  the  fee 
bill.23 

"  For  a  copy  of  any  entry  or  record,  or  of  any  paper  on  file, 
for  each  folio,  ten  cents."24  The  clerk  is  entitled  to  ten  and  not 
fifteen  cents  per  folio  for  transcripts  of  a  record.25  A  transcript 
is  but  a  copy  ; 26  and  where  the  clerk  makes  the  copy  of  subpoenas 
or  subpoena  tickets,  and  furnishes  them  to  the  marshal  for  service, 
at  the  request  or  by  the  acquiescence  of  the  district  attorney, 
the  clerk  is  entitled  to  charge  the  government  ten  cents  each, 
as  for  one  folio,  for  making  such  copies.27  In  the  Southern 
District  of  New  York  it  has  been  held  in  several  cases,  not 
reported,  that  this  authorizes  the  clerk  to  forbid  an  attorney 
or  party  to  himself  copy  a  paper  in  a  suit,  or  even  an  opinion, 
without  payment  of  the  same  fees  as  if  the  clerk  made  the  copy. 
But  the  propriety  of  such  a  practice,  which  compels  a  citizen  to 
pay  a  fee  before  he  can  learn  the  law  for  disobedience  to  which 
he  may  be  punished,  is  very  doubtful. 

is  TJ.  S.  R.  S.  §  828.  21  Blake  v.  Hawkins,  19  Fed.  R.  204. 

19  Ervvin  v.  U.  S.,  37  Fed.  R.  470.  2i  U.  S.  R.  S.  §  828. 

23  Amy  v.  Shelby  County,  1    Flippin,         ^  Cavender  v.  Cavender,  3  MeCrary, 

104.  383. 

2i  Ex  parte  Lee,  4  Cranch  C.  C.  197.  26  Cavender  v.  Cavender,  3  MeCrary, 

22  Blain  v.  Home  Ins.  Co.,  30  Fed.  R.  383. 
6(37.  27  Erwin  v.  U.  S.,  37  Fed.  R.  470,  490. 


§  331.]  clerk's  fees.  437 

"  For  making  dockets  and  indexes,  issuing  venire,  taxing  costs, 
and  all  other  services,  on  the  trial  or  argument  of  a  cause  where 
issue  is  joined  and  testimony  is  given,  three  dollars." 28  An 
attachment  against  a  defaulting  witness  or  juror  for  contempt  of 
court  is  an  independent  suit,  and  a  "cause"  for  which  a  docket 
fee  is  chargeable  under  the  fee-bill.29  The  clerk  is  required  to 
make  a  final  record  of  the  proceedings  in  such  case.30 

"  For  making  dockets  and  indexes,  taxing  eosts,  and  all  other 
services,  in  a  cause  where  issue  is  joined,  but  no  testimony  is 
given,  two  dollars."  31 

"For  making  dockets  and  indexes,  taxing  costs,  and  other 
services,  in  a  cause  which  is  dismissed  or  discontinued,  or  where 
judgment  or  decree  is  made  or  rendered  without  issue,  one 
dollar."  32 

"  For  making  dockets  and  taxing  costs,  in  cases  removed  by- 
writ  of  error,  or  appeal,  one  dollar."  33 

"  For  affixing  the  seal  of  the  court  to  any  instrument,  when 
required,  twenty-five  cents."31 

"For  every  search  for  any  particular  mortgage,  judgment,  or 
other  lien,  fifteen  cents."35  The  clerk  is  entitled  to  a  fee  of  ten 
cents  for  filing  a  requisition  for  such  a  search.36 

"For  searching  the  records  of  the  court  for  judgments,  de- 
crees, or  other  instruments  constituting  a  general  lien  on  real 
estate,  and  certifying  the  result  of  such  search,  fifteen  cents  for 
each  person  against  whom  such  search  is  required  to  be  made."  37 
As  the  statutes  do  not  expressly  provide  for  compensation  to  the 
clerk  for  searching  for  petitions  in  bankruptcy,  it  has  been  held 
that  a  reasonable  compensation  for  such  service  is  fifteen  cents 
for  each  name  against  which  search  is  made.3S  The  clerk  of  the 
Circuit  Court,  instead  of  certifying  the  result  of  a  search  for  liens 
on  the  original  requisition  delivered  to  him,  may,  and  perhaps 
should  file  such  requisition,  and  give  the  certificate  of  the  result 
of  the  search  on  another  paper.  A  charge  of  ten  cents  for 
filing  such  paper  is  proper,39  and  so  also  is  a  charge  of  fifteen 

28  U.  S.  R.  S.  §  828.  35  u.  S.  R.  S.  §  828. 

29  Erwin  v.  U.  S.,  37  Fed.  R.  470.  3;  In  re  Petition  of  Woodbury,  7  Fed 
31  Erwin  v.  U.  S.,  37  Fed.  R.  470.              R.  705. 

81  U.  S.  R.  S.  §  828.  37  tj.  S.  R.  S.  §  828. 

82  U.  s.  R.  s.  §  828.  88  Matter  of  Vermeule,  10  Ren.  1. 

U.  S.  1!.  S   §  828.  39  Ex  parte  Woudbury,  7  Fed.  R.  705. 

81  U.  S.  R.  S.  §  828. 


4S8  COSTS   AT   LAW   AND   IN   EQUITY.  [CHAP.  XXV. 

cents  for  each  person  against  whom  a  search  is  required  to  be 
made,  as  compensation  for  making  the  search,  and  for  the  act  of 
signing  the  certificate  and  certifying  the  result.40  A  compensa- 
tion of  fifteen  cents  per  folio  for  making  the  certificate  is 
proper ;  but  not  a  charge  for  affixing  the  seal  of  the  court  to  such 
certificate,  unless  required.41 

"  For  receiving,  keeping,  and  paying  out  money,  in  pursuance 
of  any  statute  or  order  of  court,  one  per  centum  on  the  amount 
so  received,  kept,  and  paid." 42  This  charge  has  been  held  to 
include  money  collected  by  the  marshal  on  executions.43  Where 
an  assignee  in  bankruptcy  files  a  bill  in  the  Circuit  Court  to  settle 
conflicting  claims  to  the  proceeds  of  a  sale,  it  is  not  his  duty  to 
pay  the  proceeds  into  the  registry  of  the  court ;  and  consequently 
the  clerk  is  not  entitled  to  commissions  on  such  money.44  It  has 
been  held  that  the  fact  that  the  money  is  subject  to  the  decree 
of  the  court,  it  not  being  in  the  court's  registr}T,  is  not  enough  to 
give  the  clerk  a  right  to  commissions.45  But  a  subsequent 
decision  holds  that  money  deposited  in  a  bank,  under  a  decree  of 
the  court,  and  subject  to  its  order,  is  within  the  meaning  of 
chapter  20,  of  the  Acts  of  1793,  which  provides  that  the  clerk 
shall  be  entitled  to  a  percentage  on  "  all  money  deposited  in 
court."46  The  money  must  either  actually  or  constructively 
pass  through  the  clerk's  hands.47  Money  received  by  a  master 
in  chancery  in  payment  of  property  sold  upon  the  foreclosure  of 
a  mortgage,  ought,  in  pursuance  of  U.  S.  R.  S.  sec.  995,  to  be 
deposited  with  a  designated  depositary  of  the  United  States,  and 
the  clerk  is  entitled  to  his  commissions  thereon.48  So  a  clerk 
who  receives,  keeps,  and  pays  out  money  under  a  judgment  is 
entitled  to  a  commission  of  one  per  cent  on  the  amount  so 
received,  the  same  to  be  paid  by  the  defendant  as  a  part  of  the 
costs.49  All  books  in  the  offices  of  the  clerks  of  the  Circuit  and 
District  Courts,  containing  the  docket  or  minute  of  the  judg- 
ments, or  decrees  thereof,  must  during  office  hours  be  open 
to  the  inspection  of  any  person  desiring  to  examine  the  same, 
without  any  fees  or  charge  therefor.50 

40  Ex  parte  Woodbury,  7  Fed.  R.  705.  46  Ex  parte  Prescott,  2  Gall.  146. 

41  Ex  parte  Woodbury,  7  Fed.  R.  705.  4?  Leech  v.  Kay,  4  Fed.  R.  72. 

«2  U.  S.  R.  S.  §  828.  «  Thomas  v.  Chicago  &  C.  S.  Ry.  Co., 

43  Fagan  v.  Cullen,  28  Fed.  R.  843.  37  Fed.  R.  548. 

44  Leach  v.  Kav,  2  Flippin  C.  C.  590.  49  Blake  v.  Hawkins,  19  Fed.  R.  204. 

45  Ex  parte  Plitt,  2  Wall.  Jr.  453.  «>  U.  S.  R.  S.  §  828. 


§  332.]  marshal's  fees.  489 

§332.  Marshal's  Fees.  —  The  marshal  of  the  Supreme  Court 
of  the  United  States  is  entitled  to  receive  for  the  service  of  any 
warrant,  attachment,  summons,  capias,  or  other  writ,  except  ex- 
ecution, venire,  or  a  summons,  or  subpoena  for  a  witness,  one 
dollar  for  each  person  on  whom  such  service  may  be  made.1 
His  fees  for  all  other  services  are  the  same  as  are  allowed  to 
other  marshals.2 

The  fees  of  the  marshals  of  the  courts  of  the  United  States, 
which  are  payable  by  the  parties,  and  taxable  as  part  of  the  costs 
in  civil  suits  and  proceedings  at  law  and  in  equity,  excluding 
from  consideration  their  fees  in  admiralty  and  proceedings  to 
enforce  forfeitures,  are  as  follows:  — 

"  For  service  of  any  warrant,  attachment,  summons,  capias,  or 
other  writ,  except  execution,  venire,  or  a  summons  or  subpoena 
for  a  witness,  two  dollars  for  each  person  on  whom  service  is 
made."  8  The  marshal  has  the  right  to  demand  in  advance  the 
payment  of  fees  for  the  service  of  process.4  Where  the  marshal 
arrests  the  wrong  person,  or  arrests  the  right  person  but  believ- 
ing him  to  be  in  one  State  when  in  fact  he  was  in  another,  he 
cannot  be  allowed  fees  of  any  kind.5  The  marshal  is  not  en- 
titled to  a  fee  for  an  arrest,  when  he  allows  the  prisoner  to  go 
free  on  his  promise  to  attend  court ;  nor  when  the  arrest  is  not 
authorized  by  the  warrant.6  Charges  for  ';  aid  "  or  assistance  are 
allowed  where  the  nature  of  the  case  renders  it  proper,  and  the 
amount  claimed  is  shown  to  be  reasonable.7 

"  For  the  keeping  of  personal  property  attached  on  mesne  pro- 
cess, such  compensation  as  the  court,  on  petition  setting  forth 
the  facts  under  oath,  may  allow."  8 

"For  serving  a  writ  of  subpoena  on  a  witness,  fifty  cents,  and 
no  further  compensation  shall  be  allowed  for  any  copy,  summons, 
or  notice  for  a  witness."  9 

"  For  serving  a  writ  of  possession,  partition,  execution,  or  any 
final  process,  the  same  mileage  as  is  allowed  for  the  service  of 
any  other  writ,  and  for  making  the  service,  seizing  or  levying  on 
property,  advertising  and  disposing  of  the  same  by  sale,  set-off, 

§  332.   i  U.  S.  R.  S.  §  832.  «  United   States  v.  Ebbs,  10  Fed.  R. 

2  U.  S.  R.  S.  §  832.  309;  s.  c.  4  Hughes,  473. 
8  U.  S.  R.  S.  §  829.  1  Ex  parte  Paris.  3  W.  &  M.  'J27. 

*  Ray  v.  Knowlton,  11  Biss.  C.  C.  300 ;  8  U.  S.  R.  S.  §  829. 

Duy  >•.  Knowlton,  14  Fed.  R.  107.  »  U.  S.  R.  S.  §  829 

5  Matter  of  Crittenden,  2  Flippin,  212. 


400 


COSTS   AT   LAW   AND   IN    EQUITY. 


[CHAP.  XXV. 


or  otherwise  according  to  law  receiving  and  paying  over  the 
money,  the  same  fees  and  poundage  as  are  or  shall  be  allowed  for 
similar  services  to  the  sheriffs  of  the  States  respectively,  in  which 
the  service  is  rendered."  10  If  the  State  court  compensates  services 
similar  to  those  performed  by  a  marshal,  although  not  performed 
there  by  a  like  officer,  the  marshal  is  entitled  to  the  same  com- 
pensation.11 When  an  execution  against  the  person  was  issued 
in  the  county  of  New  York,  the  defendant  held  under  arrest  for 
some  time,  and  the  action  subsequently  settled  by  a  compromise, 
the  defendants  paying  a  smaller  sum  than  that  specified  in  the 
execution,  it  was  held  that  the  marshal  was  entitled  to  poundage 
on  the  whole  amount  for  which  the  execution  issued  ;  and  that 
the  rate  of  poundage  should  be  that  allowed  the  sheriffs  in  the 
different  counties  throughout  the  State,  and  not  the  special  rate 
allowed  in  the  county  of  New  York.12  Where  the  marshal  who 
levied  the  execution  has  received  his  half  commissions,  his  suc- 
cessor will  be  entitled  to  no  more  than  half  commissions  for  com- 
pleting the  collection  and  paying  it  over. 13 
"  For  each  bail-bond,  fifty  cents."14 
"  For  summoning  appraisers,  fifty  cents  each."  15 
"  For  executing  a  deed  prepared  by  a  party  or  his  attorney, 
one  dollar."  16 

"  For  drawing  and  executing  a  deed,  five  dollars."  17  The 
marshal  cannot  object  to  the  purchaser  drawing  his  own  deed,  if 
he  so  choose.18 

"  For  copies  of  writs  or  papers  furnished  at  the  request  of  any 
party,  ten  cents  a  folio."  19 

"  For  travel,  in  going  only  to  serve  any  process,  warrant,  at- 
tachment, or  other  writ,  including  writs  of  subpoena  in  civil  or 
criminal  cases,  six  cents  a  mile,  to  be  computed  from  the  place 
where  the  process  is  returned  to  the  place  of  service,  or,  when 
more  than  one  person  is  served  therewith,  to  the  place  of  service 
which  is  most  remote,  adding  thereto  the  extra  travel  which  is 
necessary  to  serve  it  on  the  others.  But  when  more  than  two 
writs  of  any  kind  required  to  be  served  in  behalf  of  the  same 


i"  U.  S.  R.  S.  §  829. 
11  Pomrov  v.  Harter,  1  McLean,  448 ; 
The  Trial.  1  Blatchf.  &  H.  94. 

i2  United  States  v.  Haas,  5  Fed.  R.  29. 
13  15  Op.  Atty.-Gen.  346. 
»  U.  S.  R.  S."  §  829. 


is  U.  S.  R.  S.  §  829. 
i6  U.  S.  R,  S.  §  829. 
iT  U.  S.  R.  S.  §  829. 
is  The  John  E.  Mulford,   18  Fed.  R. 
455. 

19  U.  S.  R.  S.  §  829. 


§  333.]  witnesses'  fees.  491 

party  on  the  same  person  might  be  served  at  the  same  time,  the 
marshal  shall  be  entitled  to  compensation  for  travel  on  only  two 
of  such  writs  ;  and  to  save  unnecessary  expense,  it  shall  be  the 
duty  of  the  clerk  to  insert  the  names  of  as  many  witnesses  in  a 
cause  in  such  subpoena  as  convenience  in  serving  the  same  will 
permit."  20 

The  fees  for  services  of  a  deputy  marshal  belong  legally 'to  the 
marshal,  and  he  controls  them.  The  marshal's  receipt  must 
operate  as  a  discharge  of  the  fees.21  The  fact  that  no  return  of 
the  appointment  of  a  deputy  was  made  by  the  marshal  to  the 
District  Judge,  if  the  deputy  was  duly  appointed  and  sworn, 
would  not  affect  the  legality  of  the  service  of  the  subpoenas  by 
the  deputy,  so  as  to  deprive  him  of  the  right  to  fees.22 

§  333.  Witnesses'  Fees.  —  A  witness'  fees  are,  "  for  each  day's 
attendance  in  court,  or  before  any  officer  pursuant  to  law,  one 
dollar  and  fifty  cents,  and  five  cents  a  mile  for  going  from  his 
place  of  residence  to  the  place  of  trial  or  hearing,  and  five  cents 
a  mile  for  returning."1  When  a  witness  is  subpoenaed  in  more 
than  one  cause  between  the  same  parties,  at  the  same  court,  only 
one  travel  fee  and  one  per  diem  compensation  is  allowed  for  at- 
tendance.2 Both  are  taxed  in  the  case  first  disposed  of,  after 
which  the  per  diem  attendance  fee  alone  is  taxed  in  the  other 
cases  in  the  order  in  which  they  are  disposed  of.3  When  a  wit- 
ness is  detained  in  prison  for  want  of  security  for  his  appearance, 
he  is  entitled,  in  addition  to  his  subsistence,  to  a  compensation 
of  one  dollar  a  day.4  A  witness  can  be  subpoenaed,  and  must  be 
allowed  mileage  from  and  to  his  residence,  in  any  part  of  a  dis- 
trict, to  attend  a  court  held  within  that  district,5  or  from  another 
district  if  he  does  not  reside  more  than  one  hundred  miles  from 
the  place  of  trial.6  If  a  witness  resides  more  than  one  hundred 
miles  from  the  place  of  trial  and  voluntarily  attends,  he  can,  ac- 
cording to  the  ruling  in  the  Second  Circuit,  only  recover  mileage 
for  one  hundred  miles.7  But  it  was  held  by  the  District  Court  of 
South  Carolina  that  a  witness  for  the  United  States,  voluntarily 

21  U.  S.  R.  S.  §  829.  G  U.  S.  R.  S.  §  876  ;  The  Syracuse,  36 

21  Wintermute  v.  Smith,  1  Bond,  210.  Fed.  R.  830. 

22  Wintermute  v.  Smith,  1  Bond,  210.  7  Anon.,  5  Blatchf.  134;  Eastman  v. 
§  333.  l  U.  S.  R.  S.  §  848.  Sherry,  37  Fed.  R.  844;  The  Vernon,  36 
2  U.  S.  R.  S.  §  848.  Fed.  R.  113;  Haines  v.  McLaughlin,  20 
8  U.  S.  R.  S.  §  848.  Fed.  R.  70;  Buffalo  Ins.  Co.  v.  Prov.  & 
4  IT.  S.  R.  S.  §  848.  Stonington  S.  S.  Co.,  20  Fed.  R  237. 

6  The  Syracuse,  30  Fed.  R.  830. 


492  COSTS   AT   LAW   AND   IN   EQUITY.  [CHAP.  XXV- 

coming  to  and  attending  court  on  the  verbal  instructions  of  the 
district  attorney,  is  entitled  to  the  per  diem  and  mileage  fees, 
although  his  residence  is  out  of  the  district,  and  more  than  one 
hundred  miles  from  the  place  at  which  the  court  is  held.8  Ac- 
cording to  rulings  in  the  First  Circuit,  a  witness  is  entitled  to 
mileage  from  his  residence,  no  matter  how  far  distant  it  may  be.9 
The  Circuit  Court  of  Iowa  lays  down  the  rule  as  follows:  k'  The 
general  rule,  therefore,  is  that  as  testimony  by  deposition  can  be 
taken  when  the  witness  resides  more  than  one  hundred  miles  from 
the  place  of  trial,  mileage  for  a  greater  distance  is  not  ordinarily 
chargeable  against  the  party  not  summoning  the  witness."10  And 
this  it  holds  to  be  the  rule,  whether  the  witness  resides  within 
or  without  the  district.11  But  as  between  the  witness  and  the 
party  summoning  him,  the  witness  is  entitled  to  the  mileage  and 
per  diem  fees,  whatever  the  distance  traveled.12  It  has  been 
held  by  the  District  Court  of  South  Carolina,  that  a  person  is 
entitled  to  mileage  from  his  place  of  residence,  when,  under  a 
subpoena  as  a  witness  of  the  United  States,  he  attended  court, 
and  the  case  was  continued,  and  the  witnesses  were  verbally 
instructed  to  attend  at  the  next  term,  even  though  in  the  mean- 
time he  has  removed  his  residence  into  another  State,  and  with- 
out further  summons  attends  court  and  is  used  as  a  witness 
by  the  United  States.13  In  the  First  Circuit,  when  a  witness, 
without  having  been  summoned,  has  traveled  from  and  to  the 
place  of  his  residence,  which  is  more  than  one  hundred  miles 
from  the  place  of  trial  and  in  another  State  and  district,  mileage 
is  allowed  for  the  whole  distance.14  A  witness  does  not  lose  his 
right  to  his  fees  merely  because  he  was  not  subpoenaed,  if  his 
attendance  and  examination  were  procured  in  good  faith.15  Nor 
if  he  attends,  but  is  not  examined  ; 16  nor,  it  seems,  if  he  is  re- 
quired to  attend  at  the  hearing  after  his  deposition  has  been 
taken ; 17  nor  does  he  suffer  any  abatement  of  them,  because  he  is 

8  In  re  Williams,  37  Federal  Reporter,  12  Smith  v.  Chicago  &  N.  W.  Ry.  Co., 
325.  38  Fed.  R.  321. 

9  Prouty    v.    Draper,    2    Story,    109;  13  /n  re  Williams,  37  Fed.  R.  325. 
Whipple  v.  Cumberland  Cotton  Manuf.  M  United  States  v.  Sanborn,  28  Fed.  R. 
Co.,  3  Story,  84 ;  Hathaway  v.  Roach,  2  299. 

W.  &  M.  63  ;  United  States  v.  Sanborn,  15  Anderson  v.  Moe,  1  Abb.  (U.  S.)  299 ; 
28  Fed.  R.  299.  United  States  v.  Sanborn,  28  Fed.  R.  299; 

10  Smith  v.  Chicago  &  N.  W.  Ry.  Co.,     The  Vernon,  36  Fed.  R.  113. 

38  Fed.  R.  321.  16  Hathaway  v.  Roach,  2  W.  &  M.  63. 

11  Smith  v.  Chicago  &  N.  W.  Ry.  Co.,        17  Beckwith    v.    Easton,    4    Benedict, 
38  Fed.  R.  321.  357  ;  Anderson  v.  Moe,  1  Abb.  (U.  S.)  299. 


§  333.]  witnesses'  fees.  493 

summoned  to  attend  at  the  same  time  to  testify  in  several  suits, 
whenever  some  but  not  all  the  parties  are  the  same  ; 18  not  even 
if  both  suits  are  tried  together  and  the  witness  is  examined  but 
once,  provided  no  order  consolidating  the  suit  has  been  ob- 
tained.19 When  the  hearing  is  postponed  on  account  of  the  ill- 
ness of  counsel,  and  the  witnesses  are  required  to  remain  during 
the  postponement,  they  must  be  paid  for  the  intervening  time.20 
So,  also,  when  the  witnesses  are  required  to  remain  after  their 
examination  to  the  end  of  the  hearing.21  It  has  been  held  that 
when  a  person  has  been  served  with  a  subpoena  and  has  received 
money  for  traveling  expenses,  he  cannot  refuse  to  obey  such  sub- 
poena because  the  proper  amount  of  mileage  has  not  been  paid.22 
And  persons  subpoenaed  as  witnesses  in  the  courts  of  the  United 
States,  if  they  have  the  means,  are  obliged  to  obey  whether  their 
fees  are  advanced  or  not.23  If  a  witness  is  subpoenaed  at  the 
place  of  trial  on  the  day  when  the  subpoena  requires  him  to  at- 
tend, he  is  not  entitled  to  any  mileage.24  Fees  for  travel  of  wit- 
nesses in  going  and  returning  can  only  be  taxed  once  for  each 
occasion  of  taking  testimony,  although  each  occasion  embraces'  a 
number  of  days.25  It  is  not  necessary  that  a  witness  should 
actually  be  called  and  sworn  on  the  trial  in  order  to  entitle  him 
to  fees.26  A  witness  subpoenaed  by  the  prevailing  party  to  the 
suit  cannot  upon  his  own  motion  have  his  fees  that  remain  un- 
paid taxed  in  the  bill  of  costs  against  the  losing  party  ;  and  it 
seems  that  a  party  cannot  have  such  fees  taxed  until  he  has  paid 
the  witness,  either  before  or  after  the  service  has  been  rendered, 
and  before  judgment  for  costs.27  Witnesses  do  not  lose  their 
right  to  mileage  and  per  diem  fees  by  not  insisting  upon  prepay- 
ment ;  nor  by  the  fact  that  they  were  in  attendance  on  the  court 
in  another  cause  between  different  parties,  and  received  per 
diem  and  mileage  fees  therefor.28     And  witnesses  summoned  and 

18  Parker  v.  Bigler,  1  Fisher,  283;  The         2l  The  Sunnyside,  5  Benedict,  102. 
Vernon,  36  Fed.  R.  113.  25  Spill  v.  Celluloid   Manuf.    Co.,  28 

19  The  Vernon,  SO  Fed.  R.  113.  Fed.  R.  870. 

21  Whipple     v.     Cumberland     Cotton         26  Clark  v.  Am.  Dock  &  Improvement 
Manuf.  Co,  3  Story,  84.  Co.,  25  Fed.  K.Gil  ;   Hathaway  v.  Koach, 

-1   Whipple     i'.     Cumberland     Cotton     2  W.  &  M.  63. 
Manuf.  Co,  3  Story,  84.  ■"  O^Neil  v.  Kansas  City,  S.  &  M.  K.  Co., 

22  Norris    v.    Hasler,   23  Fed.  R.    581 ;     31  Fed.  K.  663. 

United  States  v.  Hurling,  4  Biss.  509.  28  Young  v.   Merchants'   Ins.    Co.,   29 

28  Norris  v.  Ilassler,  23  Fed.  R.  581;     Fed.  R.  273. 
United    States   v.   Durling,  4  Biss.  509, 
510. 


494  COSTS   AT   LAW   AND   IN   EQUITY.  [CHAP.  XXV. 

attending  court  are  entitled  to  their  mileage  and  per  diem  fees  if 
the  cause  was  docketed  and  could  have  been  tried  at  the  term  at 
which  the  witnesses  attended.29  Where  witnesses  were  sub- 
poenaed to  testify  to  a  particular  point,  though  the  opposite  party- 
admitted  the  point,  mileage  and  per  diem  fees  up  to  the  time  of 
such  admission  were  allowed  ;  30  and  a  second  trial  being  had,  and 
no  stipulation  or  entry  made  on  the  record  that  the  point  would  be 
admitted  at  such  second  trial,  such  per  diem  and  mileage  fees  were 
allowed  for  attendance  at  that  trial  also.31  But  it  is  held  on  the 
other  hand,  that  a  party  may  not  tax  the  fees  of  a  witness  whom 
he  has  subpoenaed,  but  whose  testimon}-  is  either  abandoned  or 
stricken  out ; 32  nor  may  he  tax  the  fees  of  more  than  three  wit- 
nesses to  a  single  fact;33  nor  fees  and  mileage  for  himself  when 
he  testifies  in  his  own  behalf.34  Where  a  defendant  corporation 
was  ordered  to  account  before  a  master  in  a  suit  for  an  infringe- 
ment of  a  patent,  the  officers  thereof  attending  as  witnesses  were 
held  not  entitled  to  mileage  and  per  diem  fees  upon  the  taxation 
of  costs  by  such  defendant.35  Only  the  necessary  expenses  of  a 
government  clerk  sent  away  from  his  place  of  business  as  a  wit- 
ness for  the  government  will  be  paid,  and  nothing  can  be  taxed 
in  the  bill  of  costs  for  his  travel  or  attendance.36  The  same  rule 
applies  to  deputy-clerks,  as  they  are  also  officers  of  the  court.37 
But  clerks  employed  by  the  marshal  in  his  office,  keeping  his 
accounts,  are  not  officers  of  the  court,  and  are  entitled  to  fees 
and  mileage.38  A  deputy-marshal  is  an  officer  of  the  court ;  but 
unless  he  is  actually  engaged  in  attendance  upon  the  court,  he 
is  entitled  to  per  diem  fees  and  mileage  if  summoned  as  a 
witness  by   the   government.39 

§334.  Miscellaneous  Disbursements.  —  The  Federal  courts  are 
not  absolutely  limited  in  the  taxation  of  costs  to  such  items  as 
are  specifically  named  in  the  statute.1  Disbursements  for  print- 
ing the  record,  evidence,  and  other  papers  in  a  suit  in  equity, 

29  Young  v.  Merchants'  Ins.  Co.,  29  35  Am.  Diamond  Drill  Co.  v.  Sullivan 
Fed.  R.  273.  Macli.  Co.,  32  Fed.  It.  552. 

39  Young  v.  Merchants'  Ins.  Co.,  29  35  U.  S.  R.  S.  §  850 ;  U.  S.  It.  S.  §  849 ; 
Fed.  it.  273.  United  States  v.  Sanborn,  28  Fed.  It.  299. 

31  Young  v.   Merchants'   Ins.  Co.,   29         37  Ex  parte  Burdell,  32  Fed.  R.  681. 
Fed.  R.  273.  38  Ex  parte  Burdell,  32  Fed.  R.  681. 

32  Troy  Iron  &  Nail  Factory  v.  Corning,         39  Ex  parte  Burdell,  32  Fed.  R.  681. 

7  Blatchf.  16.  §  334.   »  Spaulding  v.  Tucker,  2  Saw- 

33  Bussard  v.  Catalino,  2  Cranch  C.  C.  yer,  50 ;  Gunther  v.  Liverpool,  L.  &  G. 
421.  Ins.  Co.,  10  Fed.  R.  830. 

zi  Nichols  v.  Brunswick,  3  Cliff.  88. 


§  334]  MISCELLANEOUS   DISBURSEMENTS.  495 

when  required  by  rule,  are  taxable  as  costs.2  Disbursements  for 
printing  testimony  and  other  papers  for  the  court  when  not  re- 
quired by  rule  cannot  be  thus  taxed.3  Disbursements  for  print- 
ing objections  to  a  petition  to  the  Supreme  Court  in  its  original 
jurisdiction,  for  a  writ  of  mandamus,  are  taxable ;  but  disburse- 
ments for  printing  briefs  are  not.4  If  copies  of  papers,  necessarily 
obtained  for  use,  are  put  in  evidence,  and  no  order  is  made  re- 
jecting them  as  evidence,  it  is  the  duty  of  the  clerk  to  allow,  on 
taxation,  the  disbursements  paid  for  the  various  copies  put  in 
evidence  and  forming  part  of  the  record  for  final  hearings.5  But 
copies  of  papers  obtained. for  use  on  interlocutory  or  preliminary 
or  incidental  motions  or  hearings  are  not  obtained  for  use  on 
trials,  and  disbursements  in  procuring  them  cannot  be  taxed  as 
costs.6  Disbursements  taxable  in  a  State  court  may  when  made 
be  taxed  in  an  action  at  common  law  in  a  Federal  court  held  in 
the  same  State.7  For  taking  and  certifying  depositions  the  Fed- 
eral courts  will  tax,  in  favor  of  a  clerk  of  the  court  or  of  a  com- 
missioner, the  same  fees  as  are  allowed  by  Congress  for  that 
service  to  any  State  official  taking  the  deposition,  and  not  the 
fees  allowed  by  the  State  law  for  a  similar  service.8  Fees  paid 
an  attorney  for  the  examination  of  a  witness  before  a  master  or 
special  examiner,9  payments  to  an  attorney  for  travelling  ex- 
penses,10 payments  to  messengers,11  payments  to  witnesses  for  ser- 
vices in  examining  property  concerning  which  they  afterwards 
testified,12  cannot  be  taxed.  Disbursements  for  surveys  and  plans 
necessitated  by  an  order  to  make  a  pleading  more  definite  and 
certain  cannot  be  taxed.13  Disbursements  for  copies  of  models 
in  the  Patent  Office  used  as  evidence  are  taxable,14  hut  not  dis- 
bursements for  other  models.15  When  the  defendant  finally  pre- 
vailed and  a  decree  directing  him  to  account  was  set  aside,  lie 
was  allowed  to  include  in  his  bill  of  costs  the  fees  which  he  had 
been  obliged  to  pay  the  master.16     A  defendant  who  finally  pre- 

2  Jordan  v.  Agawam  Woollen  Co.,  3  10  Wooster  v.  Handy,  23  Fed.  R.  40. 

Cliff.  239;  Dennis  v.  Eddy,   12  Blatchf.  »  Wooster  v.  Handy,  23  Fed.  R.  49. 

195.  12  Tuck  v.  Olds,  29  Fed.  11.  883. 

8  Spaulding  v.  Tucker,  2  Sawyer,  50.  13  New  Hampshire  Land  Co.  v.  Tilton, 

*  Ex  parte  Hughes,  114  U.  S.  548.  29  Fed.  R.  704. 

6  Wooster  v.  Handy,  23  Fed.  R.  49.  "  Wooster  v.  Handy,  23  Fed.  R.  40. 

6  Wooster  v.  Handy,  23  Fed.  R.  49.  1S  Wooster  v.  Handy,  23  Fed.  R.  49. 

7  Huntress  v.  Epsom,  15  Fed.  R.  732.  16  American  Diamond  Drill  Co   v.  Sul- 
R  Jerman  v.  Stewart,  12  Fed.  R.  271.  livan  M.  Co.,  32  Fed.  R.  552. 

fl  Strauss  v.  Meyer,  22  Fed.  R.  407. 


496 


COSTS    AT   LAW   AND   IN   EQUITY. 


[CHAP.  XXV. 


vails  cannot  tax  the  costs  he  has  paid  upon  the  overruling  of  his 
demurrer  to  the  bill.17 

The  fees  of  United  States  commissioners  in  civil  cases  are 
as  follows :  for  administering  an  oath,  ten  cents ;  for  taking  an 
acknowledgment,  twenty-five  cents ;  for  attending  to  a  reference 
in  a  litigated  matter,  in  a  civil  cause  at  law,  in  equity,  or  in 
admiralty,  in  pursuance  of  an  order  of  the  court,  three  dollars 
a  day  ;  for  taking  and  certifying  depositions  to  file,  twenty  cents 
for  each  folio  ;  for  each  copy  of  the  same  furnished  to  a  party 
on  request,  twenty  cents  for  each  folio.18 

§  335.  Costs  out  of  the  Fund.  —  Costs  are  paid  out  of  a  fund  or 
estate  in  the  course  of  distribution  by  a  court  of  equity,  to  trus- 
tees who  have  been  obliged  to  engage  in  litigation  for  the  benefit 
of  the  estate,  and  to  persons  who  have  been  successful  in  suits 
brought  by  them  on  behalf  of  themselves  and  others  similarly  sit- 
uated.1 The  expression  "  trustees  "  is  used  here  in  the  broadest 
sense  of  the  word,  as  including  not  only  those  appointed  by  a 
deed  of  trust,  but  also  agents,  receivers,2  and  personal  represen- 
tatives.3 All  of  these,  when  under  a  bill  for  an  accounting  they 
account  fairly  and  pay  the  balance  due  from  them  into  court,  are 
entitled  to  their  costs,4  provided  that  they  have  not  acted  uncon- 
scientiously  in  the  suit5  or  in  the  previous  administration  of  their 
trust.6  The  same  is  true  when  a  suit  is  honestly  commenced  by 
one  of  them  for  the  directions  of  the  court  concerning  his  trus- 
teeship.7 But  in  suits  brought  by  or  against  any  of  them,  except 
possibly  receivers,  to  which  a  stranger  is  a  party,  they  are,  if  un- 
successful, liable  personally  to  him  for  the  costs  as  between  party 
and  party,8  which  costs,  together  with  the  expenses  of  the  suit, 
will  be  allowed   them  upon  their  accounting,9  if  the  suit  was 

uel  v.  Jones,  2  Hare,  246 ;  Curteis  v.  Can- 
dler, Mad  &  Geld.  123. 

6  Henley  v.  Philips,  2  Atk.  48  ;  Lloyd 
v.  Spillat,  3  P.  Wms.  344,  346 

6  Howard  v.  Rhodes,  1  Keen,  581 ; 
O'Callaghan  v.  Cooper,  5  Ves.  117,  129; 
Hide  v.  Haywood,  2  Atk.  126. 

i  Hicks  v.  Wrench,  Mad.  &  Geld.  93; 
Henley  v.  Philips,  2  Atk.  48. 

8  Edwards  v.  Harvey,  G.  Cooper,  40 ; 
Poole  v.  Franks,  1  Molloy,  78 ;  Westley 
v.  Williamson,  2  Molloy,  458.     See  §251. 

9  Cowdrey  v.  Galveston,  H.  &  H.  R.  R. 
Co.,  93  U.  S.  352;  Humphrys  v.  Moore, 
2  Atk.  108. 


»  N.  Y.  Belting  &  Packing  Co.  v.  N.  J. 
Car  Spring  &  Rubber  Co.,  32  Fed.  R.  755. 

is  U.  S.  R   S.  §  847. 

§  335.  1  Cowdrey  v.  Galveston,  II.  & 
H.  R.  R.  Co.,  93  U.  S.  352 ;  Trustees  v. 
Greenough,  105  U.  S.  527;  Central  R.  R. 
&  B.  Co.  v.  Pettus,  113  U.  S.  116. 

2  Attorney-General  v.  The  City  of  Lon- 
don, 1  Ves.  Jr.  243  ;  s.  c  3  Bro.  C  C.  171 ; 
Curteis  v.  Candler,  Mad.  &  Geld.  123. 

3  Rashleigh  v.  Master,  1  Ves.  Jr.  201 ; 
Samuel  v.  Jones,  2  Hare,  246. 

4  Attornev-General  v.  The  City  of  Lon- 
don, 1  Ves.  Jr.  243 ;  s.  c.  3  Bro.  C.  C.  171 ; 
Rashleigh  v.  Master,  1  Ves.  Jr.  201 ;  Sam- 


§  336.]  COSTS   AS   BETWEEN    SOLICITOR   AND   CLIENT.  497 

prosecuted  or  defended  in  good  faith  for  the  benefit  of  their 
trust.10  Costs  will  also  be  paid  out  of  a  fund  under  the  control 
of  a  court  of  equity  to  persons  who  have  been  successful  in  a  suit 
concerning  it,  brought  by  them  in  behalf  of  themselves  and  others 
similarly  situated  with  them.11  Instances  of  this  are  a  suit 
brought  by  a  single  creditor  for  a  general  administration  of 
assets,12  and  by  a  single  beneficiary  of  a  trust  to  prevent  a  loss  to 
the  trust  estate.13  Costs  have  been  allowed  in  a  similar  case  to  a 
party  who  by  his  litigation  had  beneficed  the  fund,  although  he 
eventually  failed  to  establish  his  claim  against  it.14  Such  costs 
are,  in  the  distribution  of  the  fund,  paid  before  all  claims  against 
it,  except  those  of  trustees  who  have  not  been  guilty  of  miscon- 
duct.15 The  same  rule  applies  to  a  suit  brought  by  a  single  cred- 
itor of  the  estate  against  an  executor  or  administrator  for  the 
satisfaction  of  his  own  claim.16  In  such  a  case  the  personal 
representative  can  only  recover  his  costs  from  that  part  of  the 
estate  which  remains  after  the  complainant  has  been  paid  the 
full  amount  of  his  claim  with  costs,  even  though  the  creditor 
thus  sweeps  away  the  entire  estate.17  Not  so,  however,  when  a 
bill  is  filed  by  one  creditor  in  behalf  of  himself  and  the  rest  for  a 
general  administration  of  assets;  in  which  case  the  personal  rep- 
resentative is  always  entitled  to  his  costs  out  of  the  fund  unless 
he  has  forfeited  them  by  his  misconduct.18 

§  336.  Costs  as  between  Solicitor  and  Client.  —  Costs  payable 
out  of  a  fund  in  court  are  termed  costs  as  between  solicitor  and 
client.1  Costs  as  between  solicitor  and  client  include  all  reason- 
able expenses  and  counsel  fees,  and  are  not,  like  costs  as  between 
party  and  party,  confined  to  the  amount  named  in  the  statute.2 

^  Henley  v.  Philips,  2  Atk.  48  ;  Lloyd        1S  Bennet  v.  Going,  1  Molloy,  529. 
v.  Spillat,  3  P.  Wins.  344,  346.  16  Humphrys    v.    Moore,  2  Atk.    108 ; 

11  Trustees   v.   Greenough,    105  U.  S.     Davy  v.  Seys,  Moseley,  204. 

627;   Central  R.  R.  &  B.  Co.  v.  Pettus,  «  Adair  v.  Shaw,  1  Sch.  &  Lef.  243, 

113  U.  S.  110;  Ex  parte  Jaffray,  In   re  280;  Uvedale  v.  Uvedale,  3  Atk.  117. 

Waite  &  Crocker,  1  Lowell,  321  ,  Ex  parte  18  Bennet    v.   Going,    1    Molloy,    529; 

Plitt,  2  Wall.  Jr.  453  ;  Stewart  v.  Chesa-  Young  v.  Everest,  1  R,  &  M.  420  ;  Minuse 

peake  &  Ohio  Canal  Co.,  5  Fed.  R.  149.  v.  Cox.  5  J.  Ch.  (N.  Y.)  441. 

12  Bennet  v.  Going,  1  Molloy,  529 ;  §  330.  x  Trustees  v.  Greenough,  105 
Hare  v.  Rose,  2  Ves.  Sen.  558.     See,  how-  U.  S.  527. 

ever,  Mason  v.  Codwise,  0  J.  Ch.  (N.  Y.)  '-  Trustees   v.    Greenough,    105   U.  S. 

183.  527  ;  Cowdrey  v.  G.,  H.  &    II.  R.  R.  Co., 

13  Trustees!-.  Greenough,  105  U.S.  527;  93  U.  S.  352;  Ex  parte  Jaffray,  In  re 
Stewart  v.  Chesapeake  &  Ohio  Canal  Co.,  Waite  &  Crocker,  1  Lowell,  321 ;  Ex  parte 
5  Fed.  R.  149.  Plitt,  2  Wall.  Jr.  453. 

14  Ex  parte  Putt,  2  Wall.  Jr.  453. 

32 


498  COSTS   AT  LAW   AND   IN   EQUITY.  [CHAP.  XXV. 

la  no  case,  however,  will  the  personal  expenses  and  compensa- 
tion for  the  personal  services  of  a  person,  not  a  trustee,  who  has 
engaged  in  litigation  in  behalf  of  himself  and  others,  be  included 
in  them. 

§  337.  Taxation  of  Costs.  —  Costs  as  between  party  and  party 
are  taxed  by  a  judge  or  clerk  of  the  court  upon  notice  to  the 
adverse  party,  and  are  included  in  and  form  a  portion  of  the 
judgment  or  decree.1  To  each  bill  of  costs  should  be  attached 
an  affidavit  by  some  person  acquainted  with  the  facts,  stating 
that  the  services  for  which  fees  are  charged  were  performed.2 
The  bills  when  taxed  must  be  filed  with  the  papers  in  the 
cause.3  When  the  taxation  is  by  the  clerk,  a  motion  for  a  retaxa- 
tion  of  the  costs  may  be  made  before,  or  an  appeal  taken  to,  a 
judge  of  the  court.4  A  party  who  objects  to  a  charge  in  lump 
should  demand  a  specification  of  the  items  of  which  it  is  com- 
posed.5 Where  there  is  a  dispute  as  to  a  question  of  fact,  ma- 
terial to  the  taxation  of  a  bill  of  costs,  a  reference  may  be  had 
to  an  auditor.6  Costs  as  between  solicitor  and  client  are  taxed 
by  the  court,  usually  by  means  of  a  reference  to  a  master.7  An 
appeal  from  an  erroneous  allowance  of  such  costs  can  be  made 
to  the  Supreme  Court  of  the  United  States,  provided  that  their 
amount  is  sufficient  to  give  that  court  jurisdiction.8  Upon  such 
an  appeal,  that  court  may  reverse  the  decree  if  the  costs  have 
been  awarded  upon  erroneous  principles ; 9  but  will  very  rarely 
do  so  merely  because  it  considers  the  sum  allowed  for  a  counsel 
fee  too  large.10 

§  333.  Security  for  Costs.  — A  complainant  who  does  not  reside 
within  the  district  may  be  compelled  to  give  security  for  costs.1 
Such  security  may  also  be  required  of  a  non-resident  defendant 
to  a  bill  of  interpleader  when  he  takes  aggressive  action.2     In 

§  337.   J  U.  S.  R.  S.  §  983.  9  Trustees  v.  Greenough,  105    U.  S. 

2  U.  S.  R.  S.  §  984 ;  Jerman  v.  Stew-  627 ;  Central  R.  R.  &  B.  Co.  v.  Pettus, 
art,  12  Fed.  R.  271.  113  U.  S.  116. 

3  U.  S.  R.  S.  §  983.  10  Trustees   v.   Greenough,   105  U.  S. 

4  Re  Strauss  v.  Meyer,  22  Fed.  R.  467 ;  527.  But  see  Central  R.  R.  &  B.  Co.  v. 
Tuck  v.  Olds,  28  Fed.  R.  883.  Pettus,  113  U.  S.  116. 

5  Dedekam  v.  Vose,  3  Blatchf.  153.  §  338.   J  Lyman  Ventilating  &  Refrig- 

6  Bottomley  v.  U.  S.,  1  Story,  153.  erator  Co.  v.  Southard,  12  Blatchf.  405. 

7  Trustees  v.  Greenough,  105  U.  S.  But  see  Woodworth  v.  Sherman,  3  Story, 
527;  Central  R.  R.  &  B.  Co.  v.  Pettus,  171. 

113  U.  S.  116;  Cowdrey  v.  G.  H.  &  H.  2  Gross  &  Phillips  Manuf.  Co.  v.  Ger- 
R.  R.  Co.,  93  U.  S.  352.  hard,  8  Reporter,  136. 

8  Trustees   v.   Greenough,    105  U.  S. 
527;  Angell  v.  Davis,  4  Myl.  &  C.  360. 


i 


§  338.]  SECUEITY   FOR   COSTS.  499 

order  to  obtain  an  order  compelling  such  security,  the  defend- 
ant must  move  for  it  as  soon  as  he  ascertains  the  plaintiffs  resi- 
dence.3 If  he  takes  after  such  discovery  any  step  in  the  cause 
before  moving,  it  seems  that  he  thereby  waives  his  right  to  se- 
curity.4 Upon  a  failure  to  file  security  when  required,  the  plain- 
tiff's proceedings  will  be  waived.5  When  one  of  several  plaintiffs 
is  a  resident  of  the  district,  it  seems  that  no  security  for  costs 
will  be  required.6  If  the  defendant  do  not  demand  security  for 
costs  within  a  reasonable  time,  it  will  not,  when  the  cause  is 
called  for  trial,  be  a  ground  for  a  continuance  that  such  security 
has  not  been  given.7  Where  a  plaintiff  has  recovered  judgment 
against  a  solvent  defendant,  and  process  is  outstanding  in  the 
nature  of  an  execution  to  collect  the  same,  it  is  not  proper  to 
require  the  plaintiff  to  make  a  deposit  to  secure  costs  due  a  com- 
missioner.8 It  was  held  in  New  York,  by  Chancellor  Kent,  that 
a  person  who  sued  in  another's  right,  as  an  executor  or  adminis- 
trator, could  not  be  compelled  to  give  security  for  costs.9 

8  Migliorucci  v.  Migliorucci,  1  Dick-         6  Winthorp  v.  Royal  Exch.  Ass.  Co., 

ens,  147 ;  Foster  v.  Swasey,  2  W.  &  M.  1  Dickens,  282 ;   Walker  v.  Easterby,  6 

217;  Bliss  v.  Brooklyn,  10  Blatchf.  217;  Ves.  612;  Gilbert  v.  Gilbert,  2  Paige  Oh. 

Prince  v.  Towns,  33  Fed.  R.  161.  (N.  Y.)  603. 

4  Migliorucci  t\  Migliorucci,  1   Dick-  7  Hawkins  v.  Willbank,  4  Wash.  285. 

ens,  147  ;   Foster  v.  Swasey,  2   W.  &  M.  •  U.  S.  v.  St.  Charles  Co.,  31  Fed.  R. 

217  ;  Bliss  v.  Brooklyn,  10  Blatchf.  217 ;  442. 

Prince  v.  Towns,  33  Fed.  R.  161.     But         9  Goodrich  v.  Pendleton,  3  J.  Ch.  (N. 

see  Stewart  v.  The  Sun,  36  Fed.  R.  307.  Y.)   520.       See  Cathcart  v.   Hewson,  1 

6  Fox  v.  Blew,  5  Madd.  147.  Hayes,  173. 


500         ENFORCEMENT  OF  DECREES  AND  ORDERS.   [CHAP.  XXVI. 


CHAPTER  XXVI. 

ENFORCEMENT   OF    DECREES   AND    ORDERS. 

§  339.  Enforcement  of  Decrees  and  Orders,  in  General.  —  De- 
crees and  orders  are  enforced  in  five  ways:  by  writ  of  execution,1 
by  attachment,2  by  writ  of  sequestration,3  by  writ  of  assistance,4 
and  by  the  action  of  the  court  itself  through  the  medium  of  a 
master  5  or  receiver.6 

§  340.  Executions.  —  The  rules  provide  that  "final  process  to 
execute  any  decree  may,  if  the  decree  be  solely  for  the  payment 
of  money,  be  by  a  writ  of  execution,  in  the  form  used  in  the 
circuit  court  in  suits  at  common  law  in  actions  of  assumpsit."  1 
A  decree  for  a  deficiency  after  a  sale  of  mortgaged  property  in  a 
foreclosure  suit  is  enforced  in  the  same  manner.2  By  a  statute 
passed  June  1,  1872,  and  re-enacted  December  1,  1873,  "the 
party  recovering  a  judgment  in  any  common  law  cause  in  any 
circuit  or  district  court,  shall  be  entitled  to  similar  remedies 
upon  the  same,  by  execution  or  otherwise,  to  reach  the  property 
of  the  judgment  debtor,  as  are  now  provided  in  like  causes  by 
the  laws  of  the  State  in  which  such  court  is  held,  or  by  any  such 
laws  hereinafter  enacted  which  are  adopted  by  general  rules  of 
such  circuit  or  district  court ;  and  such  courts  may,  from  time  to 
time,  by  general  rules,  adopt  such  State  laws  as  may  hereafter  be 
in  force  in  such  State  in  relation  to  remedies  upon  judgments,  as 
aforesaid  by  execution  or  otherwise."3  In  cases  where  an  appeal 
lies  to  or  a  writ  of  error  may  issue  from  the  Supreme  Court,  the 
execution  cannot  issue  till  the  expiration  of  ten  days  from  the 
entry  of  the  decree  or  judgment.4  The  writ  may,  however,  be 
previously  prepared  by  the  clerk.5     The  marshal  in  the  courts 

§  339.   i  §  340.  2  Rule  92. 

2  §§  311-346.  8  U.  S.  R.   S.  §  916.     See  Lamaster 

8  §  347.  v.  Keeler,  123  U.  S.  376. 

4  §348.  i  U.  S.  R.  S.  §  1008. 

6  §  349.  6  Board  of  Commissioners  v.  Gorman, 

6  Chapter,  XVII.  19  Wall.  661. 
§  340.  i  Rule  8. 


§  340.]  EXECUTIONS.  501 

of  the  United  States  has  duties  analogous  to  those  of  the  sher- 
iff in  the  different  States.6  It  is  his  duty  "  to  attend  the  district 
and  circuit  courts  when  sitting  in  Ins  district,  and  to  execute, 
throughout  the  district,  all  lawful  precepts  directed  to  him,  and 
issued  under  the  authority  of  the  United  States;  and  he  shall 
have  power  to  command  all  necessary  assistance  in  the  execu- 
tion of  his  duty."7  "The  marshals  and  their  deputies  have,  in 
each  State,  the  same  powers  in  executing  the  laws  of  the  United 
States,  as  the  sheriffs  and  their  deputies  in  such  State  have  by 
law,  in  executing  the  laws  thereof."8  Under  these  provisions 
of  the  Revised  Statutes,  the  marshal  or  his  deputy,  if  resisted 
when  in  the  performance  of  his  duty,  may  call  to  his  aid  a  suffi- 
cient force  from  his  district,  called  the  posse  comitatus,  or  power 
of  his  county,  from  the  corresponding  force  which  the  sheriff 
or  county  officer  has  at  his  command,9  —  that  is,  such  number  of 
men  as  are  necessary  for  his  assistance  in  the  execution  of  the 
writs  of  the  United  States  ;  and  herein  every  person  above  the 
age  of  fifteen  and  able  to  travel  is  bound  to  be  aiding,  and  if 
they  refuse  to  assist,  may  be  punished  by  fine  and  imprisonment.10 
It  has  been  said,  that  this  force  by  the  common  law  included  all 
persons,  whatever  might  be  their  occupation,  whether  civilians  or 
not ;  and  including  the  military  of  all  denominations,  —  militia, 
soldiers,  marines, —  all  of  whom  were  alike  bound  to  obey  the  com- 
mands of  a  sheriff  or  marshal.  "  The  fact  that  they  are  organized 
as  military  bodies,  under  the  immediate  command  of  their  own 
officers,  does  not  in  any  wise  affect  their  legal  character.  They  are 
still  the  posse  comitatus.'n  n  A  recent  act  of  Congress  has,  how- 
ever, provided,  that  "  From  and  after  the  passage  of  this  act  it 
shall  not  be  lawful  to  employ  any  part  of  the  army  of  the  United 
States  as  a  posse  comitatus,  or  otherwise  for  the  purpose  of  exe- 
cuting the  laws,  except  in  such  cases  and  under  such  circum- 
stances as  such  employment  of  said  force  may  be  expressly 
authorized  by  the  Constitution  or  by  Act  of  Congress."  12  Under 
this  act,  it  seems  that  aid  of  the  army  cannot  be  obtained  by  a 
marshal  unless  the  President  shall  employ  it  to  suppress  insur- 
rection  after   a   proclamation    commanding    the    insurgents   to 

6  In  re  Nagle,  39  Fed.  R.  833;  U.  S.        10  Bnc.  Abr.,  Sheriff  (11). 
R.  S.  §  788.  »  G  Op.  Att'y-Gcn.  466,  473. 

7  U.  s.  R'.  S.  §  787.  12  Act  of  Juno  IS,  1878,  §  15 ;  20  St.  at 

8  U.  S.  R.  S.  §  788.  L.  145;  1  Sup.  U.  S.  R.  S.  3G3. 

9  0  Op.  Att'y-Gen.  4G6,  4G9. 


502         ENFORCEMENT  OF  DECREES  AND  ORDERS.   [CHAP.  XXVL 

disperse.13  All  writs  of  execution  upon  judgments  or  decrees 
obtained  in  a  Circuit  or  District  Court,  in  any  State  which  is 
divided  into  two  or  more  districts,  may  run  and  be  executed  in 
any  part  of  such  State ;  but  must  be  issued  from  and  made  re- 
turnable to  the  court  wherein  the  judgment  was  obtained.14  In 
such  a  case,  the  writ  may  be  executed,  by  the  marshal  of  the 
district  from  which  it  was  issued,  in  the  other  district  without 
any  independent  writ  being  directed  to  him  for  that  purpose.15 
All  writs  of  execution  upon  judgments  obtained  for  the  use  of 
the  United  States,  in  any  court  thereof,  in  one  State,  may 
run  and  be  executed  in  any  other  State  or  in  any  Territoiy, 
but  must  be  issued  from,  and  made  returnable  to,  the  court 
wherein  the  judgment  was  obtained.16 

§  341.  Contempts.  —  An  attachment  is  the  proper  process  to 
compel  obedience  to  a  decree  or  order  requiring  the  perform- 
ance of  a  specific  act  other  than  the  payment  of  money,1  or  to 
punish  a  contempt  of  court.2  It  seems,  that  in  districts  held 
in  States  where  imprisonment  for  debt  has  been  abolished,  dis- 
obedience to  a  decree  or  order  for  the  payment  of  money  cannot 
be  punished  by  attachment ; 3  unless  the  defaulting  party  is  an 
officer  of  the  court,  as  an  attorney, 4  or  has  bid  in  property  at 
a  judicial  sale;5  or  the  motion  is  made  by  a  master  or  the 
clerk  of  the  Supreme  Court  to  compel  payment  of  his  fees.6 
The  older  cases  both  in  the  English  Chancery  and  the  Federal 
courts  hold  that  it  is  a  contempt  to  criticise  in  the  press  the 
conduct  of  the  court,7  and  to  publish  anything  which  may  create 
prejudice  against  either  party  to  a  pending  cause.8  A  case  in 
which  punishment  was  inflicted  by  Judge  Peck  for  a  criticism 
published  upon  one  of  his  decisions  led  to  his  impeachment 
trial  before  the  Senate  ;  and  although  he  was  acquitted,  a  stat- 
ute was  enacted  which  materially  diminished  the  powers  of  the 

w  16  Op.  Att'y-Gen.  162 ;  U.  S.  R.  S.  4  Jeffries  v.  Laurie,  27  Fed.  R.  195  ; 

§§  5298,  5300.  Re  Pitman,   1    Curtis,   186 ;    Bagley    v. 

14  U.  S.  R.  S.  §  985.     See  pp.  58-63.  Yates,  3  McLean,  465 ;  The  Laurens,  1 

15  Prevost  v.  Gorrell,  5  W.  N.  C.  (Pa.)  Abb.  Adm.  508;   Re  Paschal,  10  Wall. 
151.  483;  U.  S.  v.  Mann,  2  Brock.  9. 

«  U.  S.  R.  S.  §  986.  5  Camden  v.  Mayhew,  129  U.  S.  73. 

§  341.   >  Rule  8;    Mallory  Manuf.  Co.  6  Rule  82;  Supreme  Court  Rule  10. 

v.  Fox,  20  Fed.  R.  409.  7  See  the  language  of  Lord  Chancellor 

2  U.  S.  R.  S.  §  725 ;  Re  Chiles,  22  Wall.  Hardwicke  in  2  Atk.  469,  471.     Hollings- 
157.  worth   v.   Duane,   Wall.  C.  C.  77,  100; 

3  Mallory  Manuf.  Co.  v.  Fox,  20  Fed.  U.  S.  v.  Dunne,  Wall.  C.  C.  102. 
R.  409.  8  2  Atk.  469. 


§  341.]  CONTEMPTS.  503 

Federal  courts  to  punish  for  contempt.9  The  courts  of  the 
United  States  have  power  "  to  punish  by  fine  or  imprisonment, 
at  the  discretion  of  the  court,  contempts  of  their  authority  : 
Provided,  That  such  power  to  punish  contempts  shall  not  be 
construed  to  extend  to  any  cases  except  the  misbehavior  of  any 
person  in  their  presence,  or  so  near  thereto  as  to  obstruct  the 
administration  of  justice,  the  misbehavior  of  any  of  the  of- 
ficers of  said  courts  in  their  official  transactions,  and  the  dis- 
obedience or  resistance  by  any  such  officer,  or  by  any  party, 
juror,  witness,  or  other  persons,  to  any  lawful  writ,  process,  or- 
der, rule,  decree,  or  command  of  the  said  courts."  10  Beyond  this 
the  Circuit  and  District  Courts  have  no  such  power.11  The  act, 
just  quoted  in  terms  applies  to  all  courts.  Whether  it  can  be 
held  to  limit  the  authority  of  the  Supreme  Court,  which  derives 
its  existence  and  powers  from  the  Constitution,  is  doubtful.12 
Misbehavior  of  a  person  in  the  presence  of  the  court  may  consist 
in  an  assault,13  or  in  abusive  language  addressed  to  the  court14 
or  one  of  its  officers  15  or  any  person  there.16  Similar  conduct  in 
an  anteroom  of  the  court  or  so  near  the  court-room  as  to  be  heard 
therein  is  also  punishable  as  a  contempt.17  It  has  been  said  to  be 
a  contempt  for  an  attorney  to  carry  a  pistol  into  court.18  A  hear- 
ing before  a  master  in  chancery  or  examiner  is,  for  this  purpose, 
treated  as  a  proceeding  in  court.19  The  cases  affecting  receivers 
have  been  cited  in  the  chapter  on  Receivers.20  Proceedings  before 
a  grand  jury  are  considered  to  be  in  the  presence  of  the  court  ;21 
and  an  attempt  in  the  hall  adjoining  the  room  where  a  grand 
jury  is  in  session  to  bribe  a  witness  summoned  before  it  is  a  con- 
tempt of  court.22  It  has  been  held  in  Ohio,  under  a  statute  simi- 
lar to  that  limiting  the  powers  of  the  Federal  courts  to  punish 
for  contempts,  that  the  publication  of  charges  of  misconduct 
against  a  judge  holding  court,  in  a  newspaper  which  the  writer 

9  U.  S.  R.  S.  §  725.  16  Ex  parte  Terry,  128  U.  S.  289  ;  In  re 

M  U.  S.  R.  S.  §  725.  Terry,  36  Fed.  R.  419. 

11  Ex  parte  Robinson,  19   Wall.   505,  J6  u.  S.  v.  Emerson,  4  Cranch  C.  C.  188; 
510.  U.  S.  v.  Carter,  3  Cranch  C.  C.  423. 

12  Mr.  Justice  Field  in  Ex  parte  Robin-  17  U.  S.  v.  Emerson,   4  Cranch  C.  C. 
son,  19  Wall.  505,  510.  188. 

w  Sharon  v.  Hill,  24  Fed.  R.  726;  Ex  "  Sharon  v.  Hill,  24  Fed.  R.  726. 

parte  Terry,  128  U.  S.  289 ;  In  re  Terry,  19  Sharon  v.  Hill,  24  Fed.  R.  726. 

36  Fed.   R.  419;    U.  S.  v.  Patterson,  26  20  See  §  249. 

Fed.  R.  509.  «i  Savin,  Petitioner,  131  U.  S.  267. 

"  Ex  parte  Terry,  128  U.  S.  289;  In  re  22  Savin,  Petitioner,  131  U.  S.  267. 
Terry,  36  Fed.  R.  419. 


504  ENFORCEMENT   OF   DECREES   AND   ORDERS.      [CHAP.  XXVI. 

had  reason  to  believe  would  be  circulated  and  read  in  the  court- 
room, and  which  was  thus  circulated  and  read,  is  "  misbehavior 
in  the  presence  of  or  so  near  the  court  or  judge  as  to  obstruct 
the  administration  of  court  or  justice."23  It  is  not  a  contempt  to 
serve  a  suitor  with  a  summons  while  he  is  in  attendance  on  a 
term  of  court,  provided  he  is  not  served  in  the  court's  presence.24 
An  officer  of  the  court  may  be  punished  by  attachment  for  his 
misbehavior  in  office  after  his  term  of  office  has  expired  by  res- 
ignation or  otherwise.25  An  attorney  26  or  other  officer27  of  the 
court  may  be  thus  compelled  to  pay  to  a  person  named  in  the 
order  money  received  by  him  in  his  official  capacity.  Where, 
however,  there  is  room  for  a  reasonable  doubt  as  to  how  much 
is  due  from  the  officer,  the  court  will  usually  refuse  to  proceed 
against  him  summarily,  and  require  the  complaining  party  to 
begin  a  suit.28  A  juror  has  been  punished  for  contempt  because 
he  had  talked  about  the  case  in  violation  of  the  court's  direction 
to  the  contrary.29  It  has  been  held  that  a  person  enjoined  from 
the  infringement  of  a  patent  is  in  contempt  if  he  contributes  to 
a  fund  to  defray  the  expenses  of  another  who  is  contesting  the 
validity  of  the  patent.30  It  has  been  said  to  be  a  contempt  of 
court  to  bring  before  it  a  collusive  suit.31  A  person  is  not  re- 
lieved from  punishment  for  contempt  because  he  acted  in  good 
faith  under  the  advice  of  counsel  that  he  was  not  infringing 
the  court's  order.32  If  however,  the  question  as  to  whether 
he  is  in  contempt  is  doubtful,  the  court  will  not  punish  him.33 
A  corporation,  as  well  as  an  individual,  may  be  fined  for  a 
contempt.34 

§  342.  Notice  of  Application  for  Attachment.  —  The  rules  pro- 
vide that  if  a  decree  be  for  the  performance  of  a  specific  act, 
other  than  the  payment  of  money,  it  must  prescribe  the  time 
within  which  the  act  shall   be  done,  "  of  which  the    defendant 

23  Myers   v.    State,    21    Weekly    Law  2J  Be  May,  1  Fed.  R.  737;  U.  S.  v.  De- 
Bulletin,  404.  vanghan,  3  Cranch  C.  C.  84. 

24  Blighty.  Fisher,  Peters'Circuit  Court  30  Bate  Refrigerating  Co.  v.  Gillett, 
Reports,  41.  30  Fed.  R.  683. 

25  The  Laurens,  1  Ahh.  Arlm.  508.  31  Lord  v.  Veazie,  8  How.  251  ;   Cleve- 

26  In  re  Paschal,  10  Wall.  483 ;  Jeffries  land  v.  Chamberlain,  1  Black,  419. 

v.  Laurie,  27  Fed.  R.  195.  32  Atlantic  Giant  Powder  Co.  v.  Ditt- 

W  Re  Pitman,  1  Curt.  186;  Bagley  v.  man  Powder  Manuf.  Co.,  9  Fed.  R.  316. 

Yates,  3  McLean,  465;  The  Laurens,  1         33  California   Paving   Co.   v.   Molitor, 

Abb.  Adm.  508.  113  U.  S.  609. 
23  See  Tn  re  Paschal,   10   Wall.   483,         34  U.  S.  v.  Memphis  &  L.  R.  R   Co.,  0 

U.  S.  v.  Mann,  2  Brock.  9.  Fed.  R.  237. 


§  343.]      HEAEING   UPON   APPLICATIONS   FOR   ATTACHMENTS.  505 

shall  be  bound  without  further  service  to  take  notice  ;  "  1  and  that, 
"  except  in  cases  where  personal  or  other  notice  is  specially  re- 
quired or  directed,''  an  entry  of  an  order  in  the  order-book  is  suf- 
ficient notice  thereof  to  the  parties  to  the  suit.2  It  is,  however, 
the  safer  practice,  if  not  indispensable,  to  make  personal  service 
of  a  certified  copy  of  a  decree  or  order,  disobedience  to  which  it 
is  desired  to  punish  by  an  attachment.3  In  case  of  disobedience 
to  a  decree  for  the  performance  of  a  specific  act,  other  than  the 
payment  of  money,  the  rules  direct  the  issue  of  an  attachment 
ex  parte  by  the  clerk,  upon  the  filing  of  an  affidavit  that  the  act 
has  not  been  performed  within  the  required  time.4  It  is,  however, 
the  usual  practice  to  give  notice  to  the  delinquent,  either  by  an 
order  to  show  cause  or  otherwise,  of  an  application  for  an  attach- 
ment.5 An  attachment  may  be  issued  at  the  request  of  a  person 
not  a  party  to  the  cause  in  whose  favor  an  order  has  been  made, 
or  against  a  person  not  a  party  to  the  cause  against  whom 
obedience  to  an  order  can  be  enforced.6  Notice  of  the  applica- 
tion, when  required,  must  be  served  personally  upon  the  person 
thereby  affected.7 

§  343.  Hearing  upon  Applications  for  Attachments.  —  When 
the  contempt  was  committed  in  the  presence  of  the  court,  no  no- 
tice nor  trial  of  any  disputed  question  of  fact  is  necessary.1  It 
has  been  held  at  circuit  that  in  any  other  case,  at  least  when  an 
attachment  has  been  issued,  a  person  charged  with  contempt  may 
demand  that  interrogatories  be  filed  concerning  the  facts  which, 
it  is  claimed,  constitute  his  offence  ;  and  that,  if  he  denies  the  facts 
charged  under  oath,  he  cannot  be  punished,  —  the  only  remedy 
being  an  indictment  against  him  for  perjury:2  but  a  recent  de- 
cision of  the  Supreme  Court  seems  contrary  to  these  rulings.3 
He  cannot  be  compelled  to  answer  interrogatories.4  Otherwise, 
when  at  the  argument  of  the  motion  for  an  attachment  the  party 

§  342.   J  Rule  8.  7  Gray  v.  Chicago,  I.  &  N.  R.  R.  Co.,  1 

2  ftuie  4.  Woolw.    63 ;    Hollingsworth    v.    Duane, 

3  In   re   Cary,  10  Fed.  R.  G22  ;    Tn  re     Wall.  C.  C  141. 

Lloyd,  10  Beav.  451.  But  see  Re  Feeny,  §  343.   »  Ex  parte  Terry,  128  U.  S.289; 

1  Hask.  301 ;  s.  c.  4  N.  B.  11.  [70]  233;  In  re  Terry,  36  Fed.  R.  419. 

Skip  v.  Harwood,  3  Atk.  564  ;  Hearn  v.  2  U.  S.  v.  Dodge,  2  Gall.  313 ;  Ilollings- 

Tenant,  14  Ves.  136  ;  People  v.  Brower,  worth  v.  Duane,   Wall.   C.   C.  77.     See 

4  Paige  (N.  Y.),  405.  U.  S.  v.  Duane,  Wall.  C.  C.  102. 

*  Rule  8.  3  Savin,  Petitioner.  131  U.  S.  2(57. 

6  Worcester   v.    Truman,    1    McLean,  4  Hollingsworth   v.    Duane,    Wall.   C. 

483;  Fischer  v.  Hayes,  6  Fed.  R.  63.  C.  77.     See  U.  S.  v.  Duane,  Wall.  C.  C 

fi  Rule  10.  102. 


506        ENFORCEMENT  OF  DECREES  AND  ORDERS.   [CHAP.  XXVI. 

accused  of  disobedience  denies  the  charge  ;  the  court  may  either 
determine  the  disputed  question  of  fact  upon  such  affidavits  as 
are  then  presented  to  it,  or  refer  the  question  to  a  master.5  If 
the  court  find  the  charge  proved,  or  the  master  so  report  and  his 
report  be  confirmed ;  the  court  may  then  punish  the  offender  by 
fine  or  imprisonment,  and  if  a  fine  be  imposed  direct  him  "  to  stand 
committed  till  it  be  paid."6  The  court  may  make  a  preliminary 
order  directing  that  he  be  fined  ;  determining  the  principles  with 
regard  to  which  the  amount  of  the  fine  should  be  estimated ;  and 
directing  either  the  submission  of  the  amount  to  the  court  upon 
affidavits,  or  a  reference  to  a  master  for  that  purpose.'  In  these 
cases  the  writ  of  attachment  does  not  issue  till  after  the  final 
order.  "  In  proceedings  in  equity  between  parties  to  a  suit  for 
contempt  in  not  obeying  the  process  of  the  court,  or  any  order  or 
decree  in  the  cause,  the  proceedings  on  the  attachment  may  be,  and 
usually  are,  entitled  as  in  the  original  suit,  though  it  is  not  irregu- 
lar to  entitle  them  in  the  name  of  The  People,  on  the  relation  of 
the  person  prosecuting  the  attachment  against  the  defendant  or 
party  proceeded  against.  Where  the  attachment  proceeding  for 
a  contempt  is  against  a  witness,  or  a  person  not  a  part}'  to  the 
suit,  the  practice  is  to  entitle  the  order  for  attachment,  and  all 
subsequent  proceedings  thereon,  in  the  name  of  The  People,  on 
the  relation,  &c.  " 8 

§  344.  Order  of  Commitment.  —  It  is  better  practice  for  the 
order  committing  a  person  for  contempt  to  recite  the  offence 
charged,  although  it  seems  that  this  is  not  necessary  if  it  describes 
the  same  by  reference  to  other  proceedings.1  It  has  been  said 
that  an  order  committing  a  person  for  contempt  cannot  be  altered 
at  a  subsequent  term  of  the  court ; 2  that  the  court  cannot  subse- 
quently discharge  the  party  committed  upon  proof  of  his  inability 
to  comply  with  the  order,  his  remedy  being  an  application  to  the 
President  for  a  pardon  ;3  and  that  such  an  order  is  void  if  it  does 
not  express  or  limit  the  term  of  imprisonment.4     No  appeal  will 

5  Fischer  v.  Hayes,  6  Fed.  R.  63.  v.  Memphis  &  Little  Rock  R.  R  .Co.,  6 

6  Fischer  v.  Hayes,  6  Fed.  R.  63;  U.  Fed.  R.  237.  But  see  U.  S.  v.  Wayne, 
S.  R.  S.  §725.  Wall.  C.  C.  134. 

»  Fischer  v.  Hayes,  6  Fed.  R.  63.  §  344.  »  Fischer  v.  Hayes,  6  Fed.  R.  63. 

8  Judge,  now  Mr.  Justice,  Blatchford  2  Fischer  v.  Hayes,  6  Fed.  R.  63. 

in  Fischer  v.  Hayes,  6  Fed.  R.  63.     See  3  Re  Mullee,  7  Blatchf.  23. 

also  The  People  i'.  Craft,  7  Paige  (N.Y.),  *  Matter  of   Marsh,  MacArth.  &  M. 

325;  Stafford  v.  Brown,  4  Paige  (N.  Y.),  (D.  C.)  32. 
360 ;   U.  S.  ex  rel.  Southern  Express  Co. 


§  346.]  EXECUTION  OF  WEIT   OF  ATTACHMENT.  507 

lie  from  an  order  committing  a  person  for  contempt.5  If  such  an 
order  is  void,  the  prisoner  may  be  discharged  on  habeas  corpus* 
Upon  an  appeal  from  the  final  decree  so  much  of  an  order  fining 
a  party  for  contempt  as  gave  indemnity  to  his  antagonist  may  be 
reviewed  ; 7  but  not  so  much  of  the  fine  as  was  imposed  solely 
by  way  of  punishment  to  vindicate  the  dignity  of  the  court.8 

§  345.  Writ  of  Attachment  —  An  attachment  is  a  writ  directed 
to  the  marshal  of  the  court,  sealed  and  bearing  teste  in  the  same 
manner  as  a  writ  of  subpoena,1  directing  him  to  attach  the  body 
of  the  person  named  therein,  and  to  safely  keep  the  same,  so  that 
he  can  produce  the  person  or  persons  thus  attached  in  court  at  a 
certain  day  termed  the  return  day  of  the  writ,  or  until  the  further 
order  of  the  court.2  The  writ  must  be  indorsed  with  the  specific 
reason  for  which  it  is  issued,  and  also  with  the  name  and  address 
of  the  solicitor  of  the  party  issuing  it.3  The  writ  may  be  issued 
either  in  vacation  or  in  term  ;  and  may  be  returnable  immedi- 
ately ;  provided,  at  least,  that  the  party  against  whom  it  is  issued 
then  dwells  or  is  within  twenty  miles  of  the  place  of  holding  the 
court.  Otherwise,  a  period  of  fifteen  days  between  the  teste  and 
the  return  might  be  required.4 

§  346.  Execution  of  Writ  of  Attachment.  —  The  first  thing  to 
be  done  after  the  writ  has  been  issued  is  to  deliver  it  to  the 
marshal  to  whom  it  is  directed,  or  to  one  of  his  deputies  author- 
ized by  him  to  receive  such  writs.1  Although  the  writ  is  always 
directed  to  the  marshal  of  the  judicial  district  within  which  it  is  to 
be  executed,2  it  is  usually  executed  by  one  of  his  deputies.  The 
marshal  and  his  deputy  can  only  execute  the  writ  within  the 
district  for  which  he  has  been  appointed ; 3  and  not  then  against 
a  person  who  has  been  brought  there  by  force  or  fraud,  or  under 
such  circumstances  as  would  make  it  improper  to  serve  a  sub- 
poena upon  him4;  and  probably  not  upon  Sunday,5  nor  usually 

6  Hayes  v.  Fischer,  102  U.  S.  121.  §  346.   i  U.  S.  R.  S.  §  787. 
8  Ex  parte  Fisk,  113  U.  S.  713;    Ex          2  u.  S.  R.  S.  §  787. 

parte  Terry,  128  U.  S.  289.  3  tj.  S.  R.  S.  §  787  ;  In  the  Matter  of 

7  Worden  v.  Searls,  121  U.  S.  14,  26.       Allen,  13  Blatchf.  271  ;   Voss  v.  Luke,  1 

8  New  Orleans  v.  Steamship   Co.,  20     Cranch  C.  C.  331 ;  Sominerville  v.  French, 
Wall.  387.  1  Cranch  C.  C.  474. 

§  345.  i  See  U.  S.  R.  S.  §  911.  *  In  the  Matter  of  Allen,  13  Blatchf. 

2  Braithwaite's  Pr.  159-161.  271 ;  and  see  authorities  cited  under  §§  98, 

8  Braithwaite's  Pr.  159.  .  277. 

«  Acts  of  11  Geo.  IV.  &  1  Wm.  IV.  &  29   Car.   II.  eh.  12.  §  6 ;    and   see 

c.  36,  §  15,  note  3.  authorities  cited  under  §  'A. 


508         ENFOECEMENT  OF  DECREES  AND  ORDERS.   [CHAP.  XXVI. 

in  the  court-room.6  If  a  writ  is  to  be  executed  in  a  different 
district  from  that  within  which  the  court  issuing  it  is  situated, 
it  should  be  directed  to  the  marshal  of  that  district.7  It  seems 
that  this  can  only  be  done,  when  the  writ  issues  to  attach,  for 
disobedience  to  a  subpoena,  a  witness  who  lives  within  a  hundred 
miles  of  the  place  of  holding  the  court.8  If  the  delinquent  be 
already  in  custody,  either  upon  criminal  sentence  or  civil  process, 
no  further  arrest  is  necessary ;  but  the  marshal  should  give  no- 
tice of  the  attachment,  which  notice  is  called  a  detainer,  to  the 
keeper  or  jailer  in  whose  custody  he  is.9  If  a  return  day  be  ap- 
pointed in  a  writ  and  it  be  issued  to  enforce  obedience  to  an 
interlocutory  order,  the  marshal  may,  but  is  not  obliged  to  allow 
the  delinquent  to  go  at  large  with  or  without  security  for  his 
surrender  to  him  upon  the  return  day.10  If  the  delinquent  do 
not  then  surrender  himself  to  the  marshal's  custody,  the  latter 
and  his  bondsmen  are  responsible  for  all  damages,  which  the 
court  shall  determine  have  resulted  therefrom  to  the  party  at 
whose  instance  the  writ  was  issued.11  It  seems,  however,  that 
this  cannot  be  done  when  the  writ  is  issued  for  a  refusal  to  per- 
form a  specific  act  in  obedience  to  a  decree.12  According  to  an 
old  writer,  it  seems  that  when  the  marshal  "  has  taken  up  the 
body  he  has  paid  obedience  to  the  writ,  though  he  does  not  ac- 
tually bring  him  up  to  the  court;  because  the  contempt  only 
induces  a  commitment,  which  is  satisfied  by  imprisonment  in 
the  county  gaol."  13  If,  however,  he  be  specially  ordered  so  to 
do,  of  course  he  must  obey.  Upon  the  return  day  of  the  writ, 
the  marshal  should  make  a  return  thereto.  He  cannot  detain 
the  party  named  in  the  writ  after  the  return  day,  unless  by  the 
court's  order.14  There  are  three  ordinary  returns  upon  a  writ 
of  attachment:  first,  if  the  delinquent  cannot  be  arrested,  the 
marshal  returns,  "  The  within-named  John  Stiles  is  not  found  in 
my  bailiwick,"  —  this  is  termed  a  non  est  inventus,  and  upon  it 

G  United  States  v.  Seholfield,  1  Cranch  10  Morris  v.  Hayward,  G  Taunton,  569 ; 

C.  C  130;   Davis  ».  Sherron,  1  Cranch  Studd  v.  Acton,  1  H.  Blackstone,  468. 

C.  C.  287.  n  Moore  v.  Moore,  25  Beav.  8  ;   U.  S. 

1  Voss v.  Luke,  1  Cranch  C.  C.  331;  R.  S.  §§  783-786. 

Sommerville  v.  French,  1  Cranch  C.  C.  12  Rule  8 ;  Cowdray  v.  Cross,  24  Beav. 

474.  445. 

8  Henry  v.  Ricketts,  1  Cranch    C.  C.  13  Gilbert's  Chan.  83. 

580.     But  see  Voss   v.  Luke,    1   Cranch         14  Ex  parte   Eurford,  1  Cranch   C.  C 
C  C  331.  456. 

9  Trotter  v.  Trotter,  Jacob,  533. 


§  347.]  SEQUESTRATION.  509 

further  process  of  contempt  is  grounded; —  second,  if  the  delin- 
quent has  been  arrested,  but  the  marshal  lias  either  accepted 
bail  for  his  appearance  or  keeps  him  in  his  own  custody,  the  re- 
turn is,  "  I  have  attached  the  within-named  John  Stiles,  as  with- 
in I  am  commanded,  whose  body  I  have  ready,"  —  this  is  called 
accept  corpus;  —  third,  if  the  marshal  has  arrested  the  delinquent 
and  lodged  him  in  jail,  or,  finding  him  there  has  lodged  a  de- 
tainer against  him,  the  marshal  returns,  "  I  have  attached  the 
within-named  John  Stiles,  whose  body  remains  in  "  (naming  the 
jail  or  prison)  "in  my  custody."15  Although  the  return  is  regu- 
larly made  by  the  marshal,  no  matter  by  whom  the  writ  has 
been  executed,  it  will  not  be  void  if  made  by  his  deputy.10  If 
the  marshal  refuse  to  make  any  return  he  may  be  compelled  to 
do  so,  by  means  of  an  order  to  show  cause  followed  by  an 
attachment  against  himself.17  When  the  marshal  or  his  deputy 
is  a  party  to  a  cause,  or  probably  when  a  writ  of  attachment  is 
issued  against  either  of  them,  the  writs  and  precepts  therein 
must  be  directed  to  such  disinterested  person  as  the  court  or 
any  justice  or  judge  thereof  may  appoint,  and  the  person  so 
appointed  may  execute  and  return  them.18  In  such  a  case  the 
person  serving  the  process  should  make  affidavit  thereof.19 

§  347.  Sequestration.  —  The  process  of  sequestration  is  a  writ 
or  commission  issuing  under  the  seal  of  the  court,  directed  either 
to  the  marshal  or  to  certain  persons  of  the  plaintiffs  nomination, 
empowering  him  or  them  to  enter  upon  and  sequester  the  real 
and  personal  estate  of  a  defendant  (or  some  particular  parcel  of 
his  lands),  and  to  take,  receive,  and  sequester  the  rents,  issues, 
and  profits  thereof,  and  keep  the  same  in  their  hands,  or  pay  the 
same  in  such  manner  and  to  such  persons  as  the  court  shall  in 
its  discretion  appoint,  until  such  defendant  shall  have  performed 
some  matter,  previously  ordered  by  the  court,  in  the  process 
specifically  mentioned,  for  not  doing  whereof  he  is  in  contempt.1 
This  is  one  of  the  oldest  writs  of  the  court  of  chancery,  and 
has  been  the  cause  of  many  conflicts  between  the  English  chan- 
cellors and  the  courts  of  common  law.2    Much  curious  history  and 

is  Braithwaite's  Pr.  272,  281.  §347.   i  Hindc's    Ch.   Pr.    127;    Hoff- 

1(i  Spafford  t>.  Goodell,  3  McLean,  97.       man's  Ch.  Pr.  ch.  iii.  §  10;  Darnell's  Ch. 

17  United  States  t'.  Scroggins,  3  Woods,     Pr.,  ch.  xxv.  §  7. 

629  ;   Danrell's  Ch.  Pr.  470.  2  Gilbert's  Forum  Romanum,  78;  Dan- 

18  U.  S.  R.  S.  §  923  ;  Rule  15.  fell's  Ch.  Pr.,  ch.  xxv.  §  7. 

19  Rule  15. 


510         ENFORCEMENT  OF  DECREES  AND  ORDERS.   [CHAP.  XXVI. 

learning  upon  the  subject  invite  the  attention  of  the  antiquarian; 
but  as  it  is  now  rarely  used,  little  space  will  be  devoted  to  it  in 
this  work.  By  the  Equity  Rules,  whenever  the  marshal  has  re- 
turned non  est  inventus  under  a  writ  of  attachment,  a  writ  of 
sequestration  may  issue  to  compel  obedience  to  a  decree  or  order 
of  the  court.3  The  writ,  when  not  issued  to  the  marshal,  appoints 
two  or  more  sequestrators.4  The  usual  number  is  four.5  The 
sequestrators  are  officers  of  the  court,  and  as  such  are  subject  to 
new  directions  during  their  discharge  of  their  functions,6  may  be 
attached  for  disobedience  or  misconduct,7  and,  if  resistance  be 
made  to  them,  may  be  aided  by  the  court  with  the  exercise  of 
its  process  of  contempt,8  or  by  a  writ  of  assistance.9  Sequestra- 
tors must  from  time  to  time  account  for  what  comes  into  their 
hands,  and  pay  into  court  such  money  as  they  receive.10 

§  348.  Writ  of  Assistance.  —  The  Equity  Rules  provide  that 
"  when  any  decree  or  order  is  for  the  delivery  of  possession, 
upon  proof  made  by  affidavit  of  a  demand  and  refusal  to  obey 
the  decree  or  order,  the  party  prosecuting  the  same  shall  be 
entitled  to  a  writ  of  assistance  from  the  clerk  of  the  court."  l 
This  is  a  writ  commanding  the  marshal  to  eject  the  defendant 
from  the  land  and  put  the  plaintiff  in  possession ;  and  is  exe- 
cuted in  the  same  manner  as  a  writ  of  habere  facias  possessionem 
is  executed  in  favor  of  a  successful  plaintiff  in  the  action  of  eject- 
ment;2 "in  the  execution  of  which  the  sheriff  may  take  with 
him  the  posse  comitatus,  or  power  of  the  county,  and  may  justify 
breaking  open  doors,  if  the  possession  be  not  quietly  delivered. 
But,  if  it  be  peaceably  yielded  up,  the  delivery  of  a  twig,  a  turf, 
or  the  ring  of  the  door  in  the  name  of  seisin,  is  sufficient  execu- 
tion of  the  writ."3  This  writ  is  often  used  to  put  into  possession 
receivers4  and  sequestrators.5     It  is  not  issued  without  an  order 

3  Rules  7  and  8.  9  Lord   Pelham  v.   Duchess   of  New- 

*  Hoffman's   Cli.   Pr.,    ch.  iii.   §  10  ;  castle,  3  Swanst  289,  n  ;  Rule  9. 

Daniell's  Ch.  Pr.,  ch.  xxv.  §  5.  10  Howell  v.  Lord  Coningsby,  1  Fowl. 

6  Daniell's  Ch.  Pr.,  chapter  xxv.  sec-  Ex.  Pr.  161;  Desbrow  v.  Crommie,  Bunb. 
tion  5.  272. 

e  Hinde's  Ch.  Pr.  138 ;  Daniell's  Ch.         §  348.   i  Rule  9. 
Pr.,  ch.  xxv.  §  7 ;  Hoffman's  Ch.  Pr.,  ch.  2  Hunter's  Suit  in  Equity   (6th  ed.), 

iii.  §  10.  168. 

7  Lord    Pelham    v.    Lord   Harley,    3         3  Bl.  Com.  412. 

Swanst.  291,  n.  *  Sharp   v.   Carter,   3   P.    Wms.   375, 

8  Angel  v.  Smith,  9  Ves.  336 ;  Lord  379,  n ;  Seton  on  Decrees  (4th  ed.),  441, 
Pelham    v.    Duchess    of    Newcastle,    3     1563. 

Swanst.  293,  n ;  Rule  9.  6  Lord  Pelham  v.  Duchess   of  New- 


§  349.]  ACTION  BY  COUKT  ITSELF.  511 

for  that  purpose.6  It  cannot  issue  against  any  but  a  party  to 
the  suit,  or  his  representative,  or  one  who  came  into  possession 
under  hirn  since  the  suit  was  begun.7 

§  349.  Action  by  Court  itself.  —  In  the  year  1830,  an  act  was 
passed  in  England,  at  the  instance  of  Sir  Edward  Sugden,  the 
author  of  Sugden  on  Powers,  afterwards  Lord  St.  Leonards, 
providing :  "  That  when  any  person  shall  have  been  directed  by 
any  decree  or  order,  to  execute  any  deed  or  other  instrument,  or 
make  a  surrender  or  transfer,  or  to  levy  a  fine  or  suffer  a  recov- 
ery, and  shall  have  refused  or  neglected  to  execute,  make  or 
transfer,  or  levy  or  suffer  the  same,  and  shall  have  been  com- 
mitted to  prison  under  process  for  such  contempt,  or,  being  con- 
fined in  prison  for  any  other  cause  shall  have  been  charged  with 
or  detained  under  process  for  such  contempt,  and  shall  remain  in 
such  prison,  the  court  may,  upon  motion  or  petition,  and  upon 
affidavit  that  such  person  has  after  the  expiration  of  two  cal- 
endar months  from  the  time  of  his  being  committed  under  or 
charged  with,  or  detained  under  such  process,  again  refuse  to 
execute  such  deed  or  instrument  or  make  such  surrender  or 
transfer,  or  levy  or  suffer  such  fine  or  recovery,  order  or  appoint 
one  of  the  masters  in  ordinary,  or  if  the  act  is  to  be  done  out  of 
London,  then,  if  necessary  one  of  the  masters  extraordinary,  to 
execute  such  deed  or  other  instrument  or  to  make  such  sur- 
render or  transfer,  for  and  in  the  name  of  such  person,  and  to 
levy  such  fine  or  suffer  such  recovery,  in  his  name,  and  to  do  all 
acts  necessary  to  give  validity  and  operation  to  such  fine  and 
recovery,  and  to  lead  or  declare  the  uses  thereof;  and  the  execu- 
tion of  the  said  deed  or  other  instrument,  and  the  surrender  or 
transfer  made  by  the  said  master,  and  the  fine  or  recovery  levied 
or  suffered  by  him,  shall  in  all  respects  have  the  same  force  and 
validity  as  if  the  same  had  been  executed  or  made,  levied  or 
suffered,  by  the  party  himself;  and  within  ten  days  after  the 
execution  or  making  of  any  such  deed  or  other  instrument  or  sur- 
render or  transfer,  or  levying  or  suffering  such  fine  or  recovery, 
notice  thereof  shall  be  given  by  the  adverse  solicitor  to  the  party 
in  whose  name  the  same  is  executed  or  made ;  and  such  party, 
as  soon  as  the  deed  or  other  instrument  or  surrender,  transfer, 

castle.  .3  Swanst.  289,  n;   Seton  on  De-         7  Terrell  v.  Allison,  21  Wall  280;  IIow- 
8rees  (4th  ed.),  1562.  ard  v.  Railway  Co.,  101  U.  S.  837,849; 

6  Seton  on  Decrees  (4th  ed.)  1562.  Thompson  v.  Smith,  1  Dill.  458. 


512         ENFORCEMENT  OF  DECREES  AND  ORDERS.   [CHAP.  XXVI. 

fine  or  recovery,  shall  be  executed,  made,  levied  or  suffered, 
shall  be  considered  as  having  cleared  his  contempt,  except  as 
far  as  regards  the  payment  of  the  costs  of  the  contempt,  and 
shall  be  entitled  to  be  discharged  therefrom,  under  any  of  the 
provisions  of  this  act  applicable  to  his  case  ;  and  the  court  shall 
make  such  order  as  shall  be  just,  touching  the  payment  of  the 
costs,  of  or  attending  any  such  deed,  surrender,  instrument, 
transfer,  fine  or  recovery." :  "  That  where  a  person  shall  be 
committed  for  a  contempt  in  not  delivering  to  any  person  or 
persons  or  depositing  in  court  or  elsewhere,  as  by  any  order  may 
be  directed,  books,  papers,  or  any  other  articles  or  things,  any 
sequestrator  or  sequestrators  appointed  under  any  commission  of 
sequestration  shall  have  the  same  power  to  seize  and  take  such 
books,  papers,  writings,  or  other  articles  or  things,  being  in  the 
custody  or  power  of  the  person  against  whom  the  sequestration 
issues,  as  they  would  over  his  own  property;  and  thereupon 
such  articles  or  things  so  seized  and  taken  shall  be  dealt  with 
by  the  court  as  shall  be  just ;  and  after  such  seizure  it  shall  be 
lawful  for  the  court,  upon  the  application  of  the  prisoner,  or  of 
any  other  person  in  the  cause  or  matter,  or  upon  any  report  to 
be  made  in  pursuance  of  this  act,  to  make  such  order  for  the 
discharge  of  the  prisoner,  upon  such  terms,  and,  if  it  shall  see 
fit,  making  any  costs  to  the  cause,  as  to  the  court  shall  seem 
proper."2  How  far  these  acts  will  be  followed  by  the  Federal 
courts  is  a  matter  for  future  decision.3 

§  319.    !  Acts  of  1  Wm.  IV.  ch.  36,         8  See  Rule  90 ;  Shepherd  v.  Comm'rs 
§  15,  R.  15,  passed  in  1830.  of  Ross  County,  7  Ohio,  271. 

2  Act  of  1  Wm.  IV.  ch.  36,  §  15,  R.  1G. 


§  351.]      AMENDMENT   UPON   PETITION   WITHOUT  A  REHEARING.      513 


CHAPTER   XXVII. 

CORRECTION  OF  DECREE  OTHERWISE  THAN  BY  APPEAL. 

§  350.  Correction  of  Decrees  in  General.  —  When  a  party  to  a 
suit  in  equity,  or  his  representative,  feels  himself  aggrieved  by  a 
final  decree  of  the  court,  there  are  eight  ways  in  which  he  can 
apply  to  have  such  decree  reversed,  set  aside,  or  varied :  by  peti- 
tion for  a  mere  clerical  or  accidental  error,1  by  a  petition  for  a 
rehearing,2  by  a  bill  of  review,3  by  a  bill  in  the  nature  of  a  bill 
of  review,4  by  a  supplemental  bill  in  the  nature  of  a  bill  of  re- 
view,5 by  a  bill  to  set  aside  a  decree  on  account  of  fraud,  mis- 
take, accident,  or  surprise,6  by  a  bill  to  suspend  or  avoid  the 
operation  of  a  decree,7  and  by  an  appeal.8  An  interlocutory 
decree  can  be  corrected  at  the  entry  of  the  final  decree.9 

§  351.  Amendment  upon  Petition  •without  a  Rehearing.  —  The 
rules  provide  that  "  clerical  mistakes  in  decrees  or  decretal  or- 
ders, or  errors  arising  from  any  accidental  slip  or  omission,  may, 
at  any  time  before  an  actual  enrolment  thereof,  be  corrected 
by  order  of  the  court  or  a  judge  thereof,  upon  petition,  without 
the  form  or  expense  of  a  rehearing."  1  Decretal  orders  may  be 
corrected  in  the  same  manner.2  In  this  way,  corrections  have 
been  permitted  of  errors  in  the  title  of  a  decree  or  order ;  3  of  an 
omission  in  a  decree  for  specific  performance  of  a  direction  to  set- 
tle the  conveyance,4  or  of  a  reference  as  to  title  ;  5  of  an  omission 
in  a  decree  in  a  creditor's  suit  of  a  direction  to  take  the  accounts 
of  the  personal  estate  ; 6  and  of  other  defects  or  redundancies  in 
respect  to  which  a  decree  did  not  conform  to  the  directions  of  the 

§  350.    1  §  351.  §  351.  !  Rule  85.  Sue  Witters  v.  Sowlcs, 

2  §  352.  32  Fed.  R.  130  ;  Hop  Bitters  Manuf.  Co. 

8  §§  354-356.  r.  Warner,  28  Fed.  R.  577. 

4  §  357.  2  Union  Sugar  Refinery  v.  Mathiesson, 

6  §  353.  3  Cliff.  146. 

6  §  358.  3  Spearing  v.  Lynn,  2  Vern.  370. 

T  §359.  *  Trevelyan  v.  Charter,  0  Beav.  140. 

8  Chapter  XXX.  6  Hughes  v.  Jones,  26  Beav.  21. 

9  Henry  ?•.  Travelers'  Ins.  Co.,  34  Fed.          e  Pickard  v.  Mattheson,  7  Ves.  293. 
R.  258;  Clark  v.  Blair,  14  Fed.  R.  812. 

33 


514  CORRECTION   OF  DECREE.  [CHAP.  XXVII. 

written  opinion  of  the  court.7  An  order  or  decree  entered  by 
consent  cannot  be  varied  or  modified  in  a  material  part  without 
the  assent  of  all  the  parties  to  the  same  ;  but  the  court,  it  seems, 
may  give  such  further  directions  as  are  necessary  to  carry  it 
"into  effect,  according  to  its  spirit  and  intent."8  The  former 
English  practice  occasionally  though  rarely  allowed  similar  cor- 
rections in  what  were  manifestly  mere  clerical  errors  after  a  de- 
cree had  been  enrolled;9  and  in  one  case  in  the  Federal  courts,  it 
has  been  said  that  an  error  in  calculating  the  amount  ordered  by 
the  decree  to  be  paid  may  be  corrected  after  enrolment,  upon 
motion  or  petition,  by  entering  a  credit  as  for  its  payment.10 

§  352.  Petitions  for  a  Rehearing.  —  A  petition  for  a  rehearing 
is  the  proper  method  of  correcting  before  enrolment  errors  in  a 
decree  which  are  not  evidently  clerical  or  accidental.  A  petition 
for  a  rehearing  could  formerly  in  England  have  only  been  made 
to  a  judge  before  whom  the  cause  was  heard,  or  to  the  Lord 
Chancellor.1  In  the  Federal  courts  a  petition  for  a  rehearing  will 
usually  be  entertained  only  by  the  judge  or  justice  before  whom 
the  cause  was  heard.2  The  rules  provide  that  "  No  rehearing 
shall  be  granted  after  the  term  at  which  the  final  decree  of  the 
court  shall  have  been  entered  and  recorded,  if  an  appeal  lies  to 
the  Supreme  Court.  But  if  no  appeal  lies,  the  petition  may  be 
admitted  at  any  time  before  the  end  of  the  next  term  of  the  court, 
in  the  discretion  of  the  court."  3  If,  however,  a  petition  has  been 
filed  within  the  time  prescribed  by  the  rules,  it  seems  that  it  may 
be  granted  at  any  time  subsequently.4  A  rehearing  in  England 
was  formerly  allowed  almost  as  of  course,  upon  the  filing  of  a  pe- 

7  Gage  v.  Kellogg,  26  Fed.  R.  242;  134;  Yow  v.  Townsend,  1  Dickens,  59; 
Rogers  v.  Eiessner,  34  Fed.  R.  270 ;  Tufts  Attorney-General  v.  Greenhill,  34  Beav. 
t;.  Tufts,  3  W.  &  M.  429;  Pferaschmidt  174;  Beekman  v.  Peck,  3  J.  Ch.  (N.  Y.) 
v.  Kelly  Mercantile  Co.,  32  Fed.  R.  6G7 ;  415  ;  Clark  v.  Hall,  7  Paige  (N.  Y.),  382 ; 
Witters  v.  Sowles,  32  Fed.  R.  765;  Burd-  Thompson  v.  Goulding,  5  Allen  (Mass.), 
sail  v.  Curran,  31  Fed.  R.  918  ;  Albany  ;;.  81. 

Steam  Trap  Co.,  26  Fed.  R.  318;  Dor-  10  Massie  v.  Graham,  3  McLean,  41. 

sheimer  v.  Rorback,  9  C.  E.  Green  (N.  J.),  §  352.  1  Daniell's  Ch.  Pr.  (5th  Am.  ed.) 

33 ;  Sprague  v.  Jones,  9  Paige  (N.  Y.),  1471. 

395 ;  Jarmon  v.  Wiswall,  9  C.  E.  Green  2  Giant  Powder  Co.  v.  California  Vig- 

(N.  J.),  68.    But  see  R'y  Reg.  Manuf.  Co.  orit  Powder  Co.,  5  Fed.  R.  197,  202. 

p.   No.  Hudson  Co.  R.  Co.,  26  Fed.  R.  3  Rule  88.     See  McMicken  v.  Perrin, 

411.  18  How.  507. 

8  Chancellor  Walworth  in  Leitch  v.  *  Mr.  Justice  Field  in  Giant  Powder 
Cumpston,  4  Paige  (N.  Y.),  476;  Gage  v.  Co.  v.  California  Vigorit  Powder  Co.,  5 
Kellogg,  26  Fed.  R.  242  ;  Rogers  v.  Riess-  Fed.  R.  197, 202.  See  Clarke  v.  Threlkeld, 
ner,  34  Fed.  R.  270.  2  Cranch  C.  C.  408. 

9  Weston   v.  Haggerston,  G.  Cooper, 


§  351.]  PETITIONS  FOR   A  REHEARING.  515 

tition  signed  by  two  counsel,  of  whom  one  at  least  must  have 
been  concerned  in  the  original  hearing;  the  rule  having  been 
stated  by  Lord  Hardwicke,  that  "such  credit  is  given  by  the 
court  to  their  opinion  that  the  cause  ought  to  be  reheard,  that 
it  will  in  general,  order  the  cause  to  be  set  down"  for  that 
purpose,  as  a  matter  of  course.5  This  rule,  however,  has 
not  been  adopted  in  the  courts  of  the  United  States,  where 
a  rehearing  is  discretionary  with  the  judge  to  whom  the  ap- 
plication is  made.6  Unless  the  judge  acts  of  his  own  motion,  a 
rehearing  will  be  granted  only  for  errors  of  law  apparent  upon 
the  record  and  arising  upon  questions  which  were  not  argued  at 
the  original  hearing,  or  upon  newly  discovered  evidence  of  such 
a  character  that  it  would  have  authorized  a  new  trial  in  an 
action  at  law.7  "  A  rehearing  should  not  be  granted  for  newly- 
discovered  evidence  when  the  evidence  could  not  have  been  ob- 
tained by  reasonable  diligence  on  the  first  hearing,  nor  when  it 
is  merely  cumulative  to  that  previously  received,  nor  when,  if 
presented,  it  would  not  have  changed  the  result."8  "Anew 
hearing  should  not  be  had  simply  to  allow  a  rehash  of  old  argu- 
ments." 9  "  If  rehearings  are  to  be  had,  until  the  counsel  on  both 
sides  are  entirely  satisfied,  I  fear,  that  suits  would  become  im- 
mortal, and  the  decision  be  postponed  indefinitely."  10  A  rehear- 
ing can  only  take  place  for  the  purpose  of  altering  a  decree  upon 
grounds  which  existed  at  the  time  when  the  decree  was  pro- 
nounced, and  will  not  be  allowed  to  remedy  a  grievance  conse- 
quent upon  a  decree  resulting  entirely  from  circumstances  that 
have  occurred  subsequent  to  its  entry.11  The  rules  provide  that 
"  every  petition  for  a  rehearing  shall  contain  the  special  matter 
or  cause  on  which  such  rehearing  is  applied  for,  shall  be  signed 

5  Cunyngham  v.  Cunyngham,  Ambler,  orit  Powder  Co.,  5  Fed.  R.  197,  201  ; 
89.  See  Attorney-General  v.  Brooke,  18  Jenkins  v.  Eldredge,  3  Story,  299;  Tufts 
Ves.  319,  325  ;  East  India  Co.  v.  Boddam,  r.  Tufts,  3  W.  &  M.  426 ;  Hicks  v.  Otto, 
13  Ves.  421.  22  Blatchf.  122  ;  Page  v.  Holmes  Burglar 

6  Mr.  Justice  Field  in  Giant  Powder  Alarm  Telegraph  Co.,  2  Fed.  R.  330; 
Co.  v.  California  Vigorit  Powder  Co.,  6  and  cases  cited  in  the  opinions  in  these 
Fed.  R.  97.  cases. 

7  Daniel  v.  Mitchell,  1  Story,  198;  9  Mr.  Justice  Field  in  Giant  Powder 
Jenkins  v.  Eldredge,  3  Story,  299  ;  Emer-  Co.  v.  California  Vigorit  Powder  Co.,  5 
son  «;.  Davies,  1  W.  &  M.  21  ;  Tufts  v.  Fed.  R.  197,  201. 

Tufts,  3  W.  &  M.  426;  Giant  Powder  Co.  10  Mr.  Justice  Story  in  Jenkins  v.  El- 

v.  California  Vigorit  Powder  Co.,  5  Fed.  dredge,  3  Story,  299,  305. 

r.  1<i7.  u  Bowyer   v.    Bright,    13   Price,   316; 

8  Giant  Powder  Co.  v.  California  Vig-  Hurlburd  v.  Frcelove,  3  Wis.  537. 


516 


CORRECTION   OF   DECREE. 


[CHAP.  XXVII. 


by  counsel,  and  the  facts  therein  stated,  if  not  apparent  on  the 
record,  shall  be  verified  by  the  oath  of  the  party  or  by  some  other 
person."  12  The  allegations  must  be  full,  precise,  and  certain. 
It  seems  that  they  will  be  insufficient  if  sworn  to  merely  upon 
information  and  belief.13  It  has  been  held  that  when  evidence 
of  new  facts  not  already  in  issue  is  to  be  given,  the  petition 
should  be  accompanied  by  a  supplemental  bill  in  the  nature  of  a 
bill  of  review,  pleading  these  facts  ;  in  which  case,  if  the  petition 
be  granted,  the  hearing  upon  that  bill  will  take  place  at  the 
same  time  as  the  rehearing  of  the  original  suit.14  The  usual  pro- 
ceedings to  obtain  a  rehearing  are  for  the  party  desiring  it  to 
file  his  petition  in  the  clerk's  office,  and  then  to  procure  an  order 
directing  his  opponent  to  show  cause  why  his  prayer  should  not 
be  granted.15  The  adverse  party  may  then  answer,  controverting 
or  setting  up  new  matter  in  avoidance  of  allegations  in  the  peti- 
tion ;  or  probably  may  show  cause  against  granting  the  rehearing 
on  the  return  day  of  the  order  by  an  affidavit.16  If  there  be  any 
irregularity  in  the  petition,  it  may  be  taken  off  the  file  at  the 
respondent's  motion.17  Upon  the  return  day  of  the  order  to 
show  cause,  if  no  adjournment  be  had,  the  matter  is  argued  be- 
fore the  judge,  by  whose  direction  the  decree  or  order  com- 
plained of  was  made,  unless  he  be  absent,  when  the  papers  and 
the  briefs  of  counsel  should  be  filed  with  the  clerk,  who  will 
mail  them  to  him.18  The  petition  will  not  be  granted  without 
notice  to  the  adverse  parties,  and  an  opportunity  for  their  pres- 
ence afforded  them.19  Upon  a  rehearing  the  cause  or  matter  is 
proceeded  in  as  if  it  were  heard  for  the  first  time.  All  depositions 
taken  before  the  original  hearing,  though  not  then  used,  may  be 
read,20  and  the  plaintiff  may  withdraw  from  evidence  any  portion 
of  the  answer  read  before.21  No  new  evidence  can  be  used,  un- 
less a  supplemental  bill  has  been  filed ;  ^  but  exhibits  not  pre- 
viously used  may  be  produced  ;  ^  and  if  a  witness  has  since  the 


12  Rule  88. 

13  Page  v.  Holmes  Burglar  Alarm  Tel- 
egraph Co.,  2  Fed.  R.  330. 

i*  Baker  v.  Whiting,  1  Story,  218  ; 
Perry  v.  Phelips,  17  Ves.  173,  178 ;  Head 
v.  Godlee,  Johns.  536,  579 ;  Jopp  v.  Wood, 
2  De  G.  J.  &  S.  323. 

15  Giant  Powder  Co.  v.  California  Vig- 
orit  Powder  Co.,  5  Fed.  R.  197. 

16  Giant  Powder  Co.  v.  California  Vig- 
orit  Powder  Co.,  5  Fed.  R.  197. 


17  Wood  v.  Griffith,  1  Meriv.  35. 

18  Giant  Powder  Co.  v.  California  Vig- 
orit  Powder  Co.,  5  Fed.  R.  197. 

19  Giant  Powder  Co.  v.  California  Vig- 
orit  Powder  Co.,  5  Fed.  R.  197. 

20  Cunyngham  t\  Cunyngham,  Ambler, 
89,90. 

2i  Allfrey  v.  Allfrey,  1  Macn.  &  G.  87; 
Ogle  v.  Morgan,  1  De  G.  M.  &  G.  359. 
2:2  Jenkins  v.  Eldredge,  3  Story,  299. 
23  Herring  v.  Clobery,  Cr.  &  Ph.  251. 


§  353.]  BILLS   IN   THE    NATURE   OF   BILLS   OF  REVIEW.  517 

former  hearing  been  convicted  of  perjury,24  or  admitted  receiving 
a  bribe  to  influence  his  testimony,25  that  may  be  proved  to  the 
court.  After  one  rehearing,  a  petition  for  another  can  only  be 
filed  by  special  leave  of  the  court,  and  may  be  taken  off  the  file 
if  presented  without  such  leave.26  The  grant  or  refusal,  absolute 
or  conditional,  of  a  rehearing  rests  in  the  discretion  of  the  court 
where  the  cause  is  first  heard,  and  is  not  a  subject  of  appeal.27 

§  353.  Supplemental  Bills  in  the  nature  of  Bills  of  Review.  —  A 
supplemental  bill  in  the  nature  of  a  bill  of  review  is  a  bill  that 
brings  to  the  attention  of  the  court  new  matter,  which  has  arisen 
or  been  discovered  since,  and  could  not  by  the  exercise  of  due 
diligence  have  been  discovered  before,  the  time  for  taking  testi- 
mony in  a  cause  expired,  and  which  the  party  filing  the  bill 
alleges  as  a  reason  why  a  decree  made  and  passed  therein,  but 
not  signed  and  enrolled,  should  be  reversed  or  modified.1  Such 
a  bill  cannot  be  filed  after  a  decree  has  been  signed  and  en- 
rolled.2 The  proper  remedy  in  a  similar  case  then  is  a  bill  of 
review.3  A  supplemental  bill  in  the  nature  of  a  bill  of  review 
cannot  be  used  to  obtain  a  reversal  or  modification  of  a  decree 
for  errors  in  law  apparent  upon  its  face.4  That,  before  enrol- 
ment, can  only  be  done  by  means  of  a  petition  for  a  rehearing.5 
Matter  of  revivor  and  supplement  may  be  incorporated  in  such  a 
supplemental  bill.6  An  English  chancery  order  made  on  the 
17th  of  October,  1841,  and  which  should  probably  be  followed 
here,  the  clerk  taking  the  place  of  the  registrar  and  five  dol- 
lars being  reckoned  as  a  pound  sterling,  provides :  "  That  no 
supplemental  bill,  or  bill  in  the  nature  of  a  bill  of  review, 
grounded  upon  new  matter  discovered,  or  pretended  to  be  dis- 
covered, since  the  pronouncing  of  any  decree  of  this  Court,  in 
order  to  the  reversing  or  varying  of  such  decree,  shall  be  exhibi- 
ted without  the  special  leave  of  the  Court  first  obtained  for  that 
purpose,  and  unless  the  party  exhibiting  the  same  do  first  de- 
posit with  the  registrar  of  this  Court  so  much  money,  as  together 
with  the  deposit  by  the  rules  of  this  Court  required  to  be  made 

24  Needham  v.  Smith,  2  Vern.  4fi3.  2  Ves.  Sen.  596 ;  Story's  Eq.  PI.  §§  422, 

25  Needham  v.  Smith,  2  Vern.  463.  423. 

26  Moss  v.  Baldock,  1  Thill.  118.  2  Beames'  Orders,  1. 

27  Gray,  J.,  in   Roemer  v.  Bernheim,  a  See  §§  354-356. 

132  U.  S.  103,  106.  «  Berry  v.  Phelips,  17  Ves.  173. 

§  353.    !  Perry  v.  Phelips,  17  Ves.  173;  6  See  §  352. 

Mitford's  PI.  ch.  1,  §  2 ;  Moore  v.  Moore,  6  Perry  v.  Phelips,  17  Ves.  176-178. 


518  CORRECTION   OF   DECREE.  [CHAP.  XXVII. 

on  obtaining  a  rehearing  of  the  cause  or  causes  wherein  such 
decree  was  pronounced,  will  make  up  the  sum  of  501.,  as  a 
pledge  to  answer  such  costs  and  damages  as  shall  be  awarded  to 
the  adverse  party,  in  case  the  Court  shall  think  fit  to  award  any 
at  the  hearing  of  the  cause  on  such  supplemental  or  new  bill."  7 
A  supplemental  bill  in  the  nature  of  a  bill  of  review  should  state 
the  facts  which  it  is  desired  to  prove,  and,  if  they  had  then 
occurred,  the  reason  why  they  were  not  discovered  and  given 
in  evidence  before  publication ;  and  it  seems  should  state  posi- 
tively that  the  decree  has  not  been  enrolled,  and  not  in  the 
alternative,  praying  one  sort  of  relief  as  upon  a  bill  of  review, 
if  the  decree  has  been  enrolled,  and  if  not  enrolled,  then  to 
have  the  benefit  of  it  as  upon  a  supplemental  bill  in  the  nature 
of  a  bill  of  review.8  Such  a  bill  should  conclude  with  a  prayer 
that  the  cause  may  be  reheard.  It  should  be  signed  by  coun- 
sel, and  in  other  respects  conform  to  the  requirements  of  a  bill  of 
review  upon  newly  discovered  facts.9  Like  that,  it  can  only  be 
filed  by  leave  of  the  court,  which  is  obtained  in  the  same  way, 
and  upon  the  same  grounds  as  that  to  file  such  a  bill  of  review  ; 10 
and  the  proceedings  upon  the  two  kinds  of  bills  are  also  substan- 
tially the  same.11  But  according  to  Lord  Redesdale,  "  Bills  in 
the  nature  of  bills  of  review  do  not  appear  subject  to  any  pecu- 
liar cause  of  demurrer,  unless  the  decree  sought  to  be  reversed 
does  not  affect  the  interest  of  the  person  filing  the  bill."12 
Laches  may  be  a  ground  for  refusing  leave  to  file  a  supplemental 
bill  in  the  nature  of  a  bill  of  review,  unless  such  laches  is  exten- 
uated by  laches  on  the  part  of  the  defendant  to  it.13  Such  a 
bill  cannot  be  heard  unless  accompanied  by  a  petition  for  a  re- 
hearing, when  the  rehearing  of  the  original,  and  the  hearing  of 
the  supplemental  cause  will  be  set  down  together.1* 

§  354.  Bills  of  Review.  —  A  bill  of  review  is  a  bill  filed  to 
reverse  or  modify  a  decree  that  has  been  signed  and  enrolled  for 
error  in  law  apparent  upon  the  face  of  such  decree,  or  on  account 
of  new  facts  discovered  since  publication  was  passed  in  the  origi- 

i  Order  of  17th  October,  1741 ;  Beames'  "  Story's  Eq.  PI.  §§  422-425. 

Orders,  368.  12  Mitford's  PI.  ch.  1,  §  3,  pt.  3. 

8  Story's  Eq.  PI.  §  425.  See  the  Ian-  13  Story's  Eq.  PI.  §423;  Sheffield  Canal 
guage  of  Lord  Eldon  in  Perry  v.  Phelips,  Co.  v.  Sheffield  &  R.  Ry.  Co.,  1  Phillips, 
17  Ves.  173-178.  484. 

9  Story's  Eq.  PI.  §§  422,  425.  14  Moore  v.  Moore,   2   Ves.  Sen.  596, 
w  Story's  Eq.  PI.  §  422.                              598 ;  Perry  v.  Phelips,  17  Ves.  173. 


§  354]  BILLS    OF   REVIEW.  519 

nal  cause,  and  which  could  not  by  the  exercise  of  due  diligence 
have  been  discovered  or  used  before  the  decree  was  made.1  A 
bill  of  review  can  only  be  filed  to  impeach  a  final,  not  to  im- 
peach an  interlocutory  decree.2  For  an  interlocutory  decree  can 
always  be  modified  or  reversed  by  the  court  without  any  bill 
for  that  purpose.3  But  the  expression  "  final  decree  "  is  here 
used  with  the  meaning  given  it  when  speaking  of  appeals.4  The 
errors  of  law  for  which  a  decree  may  be  reversed  or  modified, 
must  be  clearly  apparent  upon  the  record,  that  is,  "  only  such 
as  arose  upon  the  pleadings,  proceedings,  and  decree,  without 
reference  to  the  evidence  in  the  cause ; "  5  as,  for  example,  the 
disregard  of  a  statute,6  or  want  of  jurisdiction,7  or  the  finding 
of  a  fact  contrary  to  an  allegation  in  a  defendant's  answer  when 
no  evidence  was  taken ; 8  not  errors  in  drawing  conclusions  from 
evidence,9  nor  errors  in  casting  accounts,10  nor  it  seems  in  matters 
of  abatement,11  nor  in  the  exercise  of  discretion,12  nor  matters  of 
form,13  —  among  which,  however,  the  omission  of  a  clause  giving 
an  infant  defendant  a  day  in  which  to  show  cause  against  a 
decree  is  not  included.14  It  has  been  held  to  be  no  sufficient 
ground  for  a  bill  of  review,  that,  since  the  decree,  a  State  court 
has  given  to  the  Constitution  of  the  State  a  construction  different 
from  that  put  upon  it  by  the  Federal  court  in  its  decree.15  In 
England,  where  the  mandatory  part  of  a  decree  was  usually  pre- 
ceded by  a  statement  of  the  facts  upon  which  it  was  founded, 
only  the  decree  itself  could  be  examined  for  such  errors;16  but 
in  the  Federal  courts  where  this  custom  does  not  exist,  the  whole 

§  354.   1  Mitford's  PI.  ch.  1,  §  3,  pt.  3  ;  <>  Clark  v.  Killian,  103  U.  S.  766. 

Story's  Eq.  PI.  §§  403-420.  9  Whiting  v.  Bank  of  United  States, 

*  Jenkins  v.  Eldredge,  3  Story,  299;  13  Pet.  6;    Dexter  v.  Arnold,  5  Mason, 
Story's  Eq.  PI.  §  408  a.  303;   Putnam  i\  Day,  22  Wall.  60;  Buf- 

3  Story's  Eq.  PI.  §  408  a.  fington  v.  Harvey,  95  U.  S.  99. 

*  Story's  Eq.  PI.  §  408  a  ;  Whiting  v.  1U  Massie   v.   Graham,  3  McLean,  41 ; 
Bank  of   United  States,  13  Pet.  6,  15;  Beame's  Ord.  1 ;  Story's  Eq.  PL  §  405. 
Ray  v.  Law,  3  Craneh,  179;  Jenkins  v.  n  Story's  Eq.  PI.  §411;  Hart  well  v. 
Eldredge,  3  Story,  299.  Townsend,  6  Bro.  Pari.  R.  107  ;  Slingsby 

s  Mr.  Justice  Bradley  in  Buffington  v.  v.  Hale,  1  Ch.  Cas.  122. 

Harvey,  95  U.  S.  99.     See  also  Whiting  12  Buffington  v.  Harvey,  95  U.  S.  99. 

v.   Bank   of    United    States,   13   Pet.  6;  13  Story's  Eq.  PI.  §  411. 

Putnam  v.  Day,  22  Wall.  60;  Thompson  M  Story's  Eq.  PI.  §  407  ;  Perry  v.  Phe- 

v.  Maxwell,  95  U.  S.  391.  lips,  17  Ves.  173;  Gregor  v.  Molesworth, 

6  Story's  Eq.  PI.    §  405;    Gregor   v.  2  Ves.  Sen.  109. 

Molesworth,  t  Ves.  Sen.  109.  15  King  t>.  Dundee  Mortgage  &  Tr.  I. 

'  Ketchum  v.  Farmers'  L.  &  T.  Co.,  Co.,  28  Fed.  R.  33. 

4  McLean,  1.  16  Story's  Eq.  PI.  §  407. 


520  CORRECTION   OF   DECREE.  [CHAP.  XXVII. 

record  except  the  evidence  may  be  thus  corrected.17  Bills  of  re- 
view for  errors  apparent  upon  the  record  can  only  be  filed  within 
the  time  limited  for  an  appeal.18  After  a  decree  has  been 
affirmed  by  the  Supreme  Court  of  the  United  States,  it  cannot 
be  reviewed  for  errors  in  law,  at  least  not  without  the  leave  of 
that  court.19  Leave  of  court  is  not  needed  to  enable  a  party 
to  file  a  bill  of  review  for  errors  apparent  upon  the  face  of  the 
record.20 

§  355.  Provisions  peculiar  to  Bills  of  Review  for  Matters  of 
Fact  newly  discovered.  —  Bills  of  review  upon  matters  of  fact 
newly  discovered  can  only  be  filed  by  express  leave  of  the 
court.1  Leave  should  be  obtained  by  a  petition  praying  for 
leave  to  file  the  bill,  and  supported  by  an  affidavit  showing 
that  the  new  matter,  which  it  is  desired  to  prove,  was  not 
known  to  the  petitioner,  and  could  not  have  been  discovered 
by  him  with  the  exercise  of  due  diligence,  in  time  to  prove  it 
before  the  entry  of  the  decree  sought  to  be  reviewed.2  It 
seems  that  the  affidavit  must  be  positive  and  not  merely  upon 
information  and  belief.3  Previous  knowledge  of  it  by  the  peti- 
tioner's attorney  or  other  agent  while  acting  in  that  capacity,  is 
equivalent  to  knowledge  by  the  petitioner,  and  will  be  a  reason 
for  refusing  to  allow  him  to  file  the  bill.4  If  the  newly  dis- 
covered facts  are  proved  by  documents  that  were  under  the 
control  of  the  petitioner,  very  good  reasons  for  his  not  discover- 
ing and  producing  them  before  must  be  shown  in  order  to  entitle 
him  to  file  a  bill  of  review  founded  upon  them.5  The  affidavit 
should  also  state  the  nature  of  the  new  matter,  and  the  evidence 
desired  to  be  given  in  its  support,  in  order  that  the  court  may 
judge    of   its   relevancy   and   materiality.6     It   is  said  that  the 

"  Whiting  v.  Bank  of  United  States,  Young  v.  Keighly,  16  Ves.  348 ;  Purcell 

13  Pet.  6 ;  Buffington  v.  Harvey,  95  U.  S.  v.  Miner,  4  Wall.  519;  Dexter  v.  Arnold, 

99 ;  Clark  v.  Killian,  103  U.  S.  766.  5  Mason,  303 ;  Massie  v.  Graham,  3  Mc- 

™  Thomas  v.  Harvie's  Heirs,  10  Wheat.  Lean,  41 ;    Ross  v.  Prentiss,  4  McLean, 

146  ;  Kennedy  v.  Georgia  State  Bank,  8  106  ;  Story's  Eq.  PI.  §§  412,  413. 
How.  586;   Clark   v.   Killian,  103  U.   S.  3  Page  v.  Holmes  Burglar  Alarm  Tele- 

766  ;   Story's  Eq.  PL  §  410.      See  also  graph  Co.,  2  Fed.  R.  330. 
Massie  v.  Graham,  3  McLean,  41.  4  Norris  v.  Le  Neve,  3  Atk.  26  ;  Green- 

19  Southard  v.  Russell,  16  How.  547 ;  lee  v.  McDowell,  4  Ired.  Eq.  (S.  C.)  481 ; 
Story's  Eq.  PI.  §  408.  Story's  Eq.  PL  §§  413,  414. 

20  Ross  v.  Prentiss,  4  McLean,  106.  5  Forum  Romanum,  187. 

§  355.   •  Anon.,  2  P.  Wms.  283;  Perry         6  U.  S.  v.  Sampeyreac,  Hempst.  118; 

v.  Phelips,  17  Ves.  173 ;  Ross  v.  Prentiss,  Dexter  v.  Arnold,  5  Mason,  303 ;   Mas- 

4  McLean,  106 ;  Story's  Eq.  PL  §  412.  sie   v.   Graham,  3  McLean,  41 ;  Story's 

2  Wortley  v.  Birkhead,  2  Ves.  Sen.  571;  Eq.  PL  §  412. 


§  356.]        PROVISIONS   COMMON   TO    ALL    BILLS    OF   REVIEW.  521 

matter  must  be  not  only  new,  but  material,  and  such  as,  if  un- 
answered in  point  of  fact,  would  clearly  entitle  the  plaintiff  to  a 
decree,  or  would  raise  a  question  of  so  much  nicety  and  difficulty 
as  to  be  a  fit  subject  of  judgment  in  the  cause.7  The  new  matter 
may  be  concerning  a  point  not  in  issue  in  the  original  cause,8 
provided  that  it  be  connected  with  the  subject-matter  of  the 
bill.9  A  bill  of  review  will  not  lie  on  the  ground  of  newly  dis- 
covered evidence  which  is  merely  cumulative,  or  goes  to  impeach 
the  character  of  witnesses.10  It  has  been  said  that  the  matter 
upon  the  discovery  of  which  a  bill  of  review  is  based,  if  previ- 
ously known  to  the  other  party,  must  be  of  such  a  nature  that 
he  was  not  in  conscience  obliged  to  have  discovered  it  to  the 
court ;  for  if  it  was  known  to  him  and  such  as  in  conscience  he 
ought  to  have  discovered,  he  obtained  the  decree  by  fraud,  and 
it  ought  to  be  set  aside  by  an  original  bill.11  The  allowance  of  the 
filing  of  such  a  bill  of  review  is  always  in  the  discretion  of  the 
court ; 12  and  lapse  of  time  since  the  discovery  of  the  new  matter 
will  always  have  great  weight  in  inducing  the  court  to  look  with 
disfavor  upon  the  application  for  leave  to  file  such  a  bill  of 
review.13  It  has  been  said  that  if  the  decree  impeached  have 
been  affirmed  by  an  appellate  court,  such  a  bill  of  review  can 
only  be  filed  by  leave  of  that  court.14  A  bill  of  review  for  newly 
discovered  matter,  if  filed  without  leave,  may  upon  motion  be 
dismissed  or  taken  off  the  file.15 

§  356.  Provisions  common  to  all  Bills  of  Review.  —  "  To  en- 
title a  person  to  bring  a  bill  of  review,  it  is  necessary  that  he 
should  have  obeyed  or  performed  the  decree  ;  as,  if  it  be  for 
land,  that  the  possession  be  yielded  ;  if  it  be  for  money,  that 
the  money  be  paid ;  if  it  be  for  evidences,  that  the  evidences 
be  brought  in  ;  and  so  in  other  cases  which  stand  upon  the 
strength  of  the  decree  alone.  But  if  any  act  be  decreed  to  be 
done,  which  extinguished  the  party's  right  at  the  common  law, 
as  making  of  assurance  or  release,  acknowledging  satisfaction, 

7  Ord  v.  Noel,  6  Madd.  127.  ham,   3   McLean,  41 ;    Story's    Eq.    PI. 

8  Partridge  v.  Usborne,  5  Russ.  195.  §§  404,  417. 

9  U.  S.  v.  Sampeyreac,  Hempst.  118.  13  Blandy  v.  Griffith,  6  Fish.  Pat.  Cas. 
™  Southard  v.  Russell,  16  How.  547.  434;  Thomas  v.  Harvie,  10  Wheat.  146, 

11  Manaton  v.  Molesworth,  1  Eden,  18,     151 ;  Story's  Eq.  PI.  §  410. 

25.   But  see  U.  S.  v.  Sampeyreac,  Hempst.  M  Southard  v.  Russell,  16  How.  547. 

118  ;  s.  c.  as  Sampeyreac  v.  U.  S.,  7  Pet.  15  Carroll  v.  Parran,  1  Bland  (Md.),  125, 

222.  note. 

12  Beames'  Orders,  1  ;    Massie  v.  Gra- 


522  CORRECTION   OF   DECREE.  [CHAP.  XXVII. 

cancelling  bonds  or  evidences,  and  the  like,  those  parts  of  the 
decree  are  to  be  spared  until  the  bill  of  review  be  determined ; 
but  such  sparing  is  to  be  warranted  by  public  order  made  in 
Court."  1  If,  however,  the  plaintiff  to  the  bill  of  review  be  in- 
solvent,2 or  for  any  other  reason  it  be  impossible  for  him  to  obey 
the  original  decree;3  or  if  it  directed  him  to  perform  an  act 
after  the  performance  of  another  act  by  the  other  part}',  and 
that  other  have  omitted  to  perform  his  part  thereof;4  or  perhaps, 
if  he  have  given  security  for  its  performance,5  —  his  disobedience 
is  no  objection  to  the  bill  of  review.  By  an  English  order  in 
Chancery,  made  on  March  12,  1700,  it  was  ordered,  that  for 
the  future  no  bill  of  review  should  be  allowed  or  admitted,  unless 
the  party  who  preferred  it  first  deposited  the  sum  of  <£50  with 
the  registrar  of  the  court,  as  a  pledge  to  answer  such  costs 
and  damages  as  the  court  should  award  to  the  adverse  party, 
in  case  it  should  think  fit  to  dismiss  the  bill  of  review.6  This 
order  should  probably  be  followed  here,  five  dollars  being 
reckoned  as  the  equivalent  of  a  pound  sterling,  and  the  money 
being  deposited  with  the  clerk  of  the  court.7  The  court  may, 
however,  dispense  with  this  requirement.8  A  decree  entered  by 
consent  cannot  be  impeached  by  a  bill  of  review.9  A  decree 
entered  by  consent  can  be  set  aside  only  by  an  original  bill 
alleging  fraud  or  surprise.10  It  is  no  objection  to  a  bill  of  re- 
view that  the  party  filing  it  has  entered  and  procured  the  enrol- 
ment of  the  decree;  "because,"  said  Lord  Nottingham,  "he  can 
have  no  error  till  it  be  enrolled,  and  perhaps  the  defendant  will 
never  enrol  it ; "  n  and  a  party  may  file  a  bill  of  review  to  a 
decree  entirely  in  his  favor,  claiming  that  it  is  less  beneficial  to 
him  than  it  should  have  been.12  If  upon  a  bill  of  review  a 
former  decree  has  been  reversed,  another  bill  of  review  may  be 
brought  to  reverse   the  decree  of  reversal ; 13  but  after  a  bill  of 

§  356.   i  Darnell's  Ch.  Pr.  (3d  Am.  ed.)  6  Beanies'  Orders,  313;  Anon.,   2  P. 

1G34-1635.     See  also  Beames'  Orders,  4  ;  Wins.  283. 

Massie  v.  Graham,  3  McLean,  41.  7  Davis  v.  Speiden,  104  U.  S.  83. 

2  Davis  v.  Speiden,  104  U.  S.  83.  8  Davis  v.  Speiden,  104  U.  S.  83. 

3  Story's  Eq.  PI.  §  406;  Wiser  v.  9  Thompson  v.  Maxwell,  95  U.  S.  391. 
Blachly,  2  J.  Ch.  (N.  Y.)  488;  Davis  10  Gilbert  v.  Endean,  9  Ch.  D.  259,  266. 
v.  Speiden,  104  U.  S.  83.  u  Cook  v.  Bamfield,  3  Swanst.  607. 

4  Partridge  v.  Usborne,  5  Russ.  195,  12  Cook  v.  Bamfield,  3  Swanst.  607; 
251 ;  Story's  Eq.  PI.  §  406.  Dexter  v.  Arnold,  5  Mason,  303. 

6  Starlings    v.    Goodloe,   3    Murphey,        13  Mitford's  PI.  ch.  1,  §  3  ;  Stafford  v. 
150 ;  Taylor  v.  Person,  2  Hawks  (N.  C),    Bryan,  2  Paige  (N.  Y.),  45. 
2'JS. 


§  356.]        PROVISIONS   COMMON   TO   ALL   BILLS    OF    REVIEW.  523 

review  has  been  dismissed  upon  demurrer  or  otherwise,  no  second 
bill  of  review  will  be  allowed  to  be  filed.14  It  is  uncertain 
whether  a  bill  of  review  can  be  filed  pending  an  appeal.15  No 
person  -can  file  a  bill  of  review  except  a  party  who  has  been 
aggrieved  by  the  decree  complained  of,16  or  the  assignee  by 
operation  of  law  of  such  a  party.17  All  the  parties  to  the 
original  decree  should  be  joined  in,  either  as  plaintiffs  or  as 
defendants  to  the  bill  of  review.18  Lord  Redesdale  gives  the 
following  rules  for  the  framing  of  a  bill  of  review:  "  In  a  bill 
of  this  nature  it  is  necessary  to  state  the  former  bill,  and  the 
proceedings  thereon ;  the  decree,  and  the  point  in  which  the 
party  exhibiting  the  bill  of  review  conceives  himself  aggrieved 
by  it ;  and  the  ground  of  law,  or  new  matter  discovered  upon 
which  he  seeks  to  impeach  it :  and  if  the  decree  is  impeached 
on  the  latter  ground  it  seems  necessary  to  state  in  the  bill  the 
leave  obtained  to  file  it  and  the  fact  of  the  discovery,  though 
it  may  be  doubted  whether  after  leave  given  to  file  the  bill  that 
fact  is  traversable.19  The  bill  may  pray  simply  that  the  decree 
may  be  reviewed  and  reversed  in  the  point  complained  of,  if  it 
has  not  been  carried  into  execution.  If  it  has  been  carried 
into  execution  the  bill  may  also  pray  the  farther  decree  of  the 
court,  to  put  the  party  complaining  of  the  former  decree  into 
the  situation  in  which  he  would  have  been  if  that  decree  had 
not  been  executed.  If  the  bill  is  brought  to  review  the  reversal 
of  a  former  decree,  it  may  pray  that  the  original  decree  may 
stand.  The  bill  may  also,  if  the  original  suit  has  become  abated, 
be  at  the  same  time  a  bill  of  revivor.  A  supplemental  bill  may 
likewise  be  added,  if  any  event  has  happened  which  requires  it ; 
and  particularly  if  any  person  not  a  party  in  the  original  suit 
becomes  interested  in  the  subject  he  must  be  made  a  party  to 
the  bill  of  review  by  way  of  supplement.'" 20  The  plaintiff, 
however,   cannot  put  his  case  in   the    alternative,  as  a  bill   of 

14  Pitt  v.  Earl  of  Arglass,  1  Vern.  441 ;  18  Bank  of  the  United  States  v.  White, 
Danny  v.  Filmore,  1  Vern.  135.  8  Pet.  262. 

15  Wilhm  v.  Willan,  1G  Ves.  72,  87.  10  But  see  United   States  v.   Sampey- 

16  Whiting  v.  Bank  of  the  United  reac,  Ilempst.  118;  Dexter  v.  Arnold, 
States,  13  Pet.  6;  Thompson  v.  Max-  5  Mason,  303;  Story's  Eq.  PI.  §  420, 
well,   95   U.   S.  301.      But  see   King   v.  note  7. 

Dundee  Mortgage  &  Tr.  I.  Co.,  28  Fed.  -°  Mitford's  PI.  eh.  1,  §  8,  pt.  S.      See 

R.  33.  also  Whiting  v.  Bank  of  United  States, 

17  Story's  Eq.  PI.  §  409;  Thompson  v-  13  Pet.  6. 
Maxwell,  95  U.  S.  391. 


524  CORRECTION   OF   DECREE.  [CHAP.  XXVIL 

review,  or,  if  the  court  shall  think  it  not  good  as  such,  then  as 
a  bill  of  revivor  and  supplement.21  It  is  improper  for  a  bill  of 
review  on  account  of  errors  of  law  to  contain  a  statement  of  the 
evidence  in  the  original  cause.22  A  bill  f  review  should  be 
signed  by  counsel,  and  otherwise  conform  in  general  to  the 
requirements  of  an  original  bill.23  If  the  court  had  jurisdiction 
of  the  original  suit,  it  can  take  jurisdiction  of  the  bill  of  review  ; 
even  though  it  would  have  none  were  the  latter  regarded  as  the 
beginning  of  a  new  suit.24  It  has  been  said  that  a  Federal 
court  cannot  take  cognizance  of  a  bill  of  review  to  a  decree  of 
a  State  court.25  The  service  and  the  appearance  of  a  defendant 
to  a  bill  of  review  is  made  and  enforced  in  the  same  manner 
as  to  an  original  bill.  But  if  the  defendant  be  beyond  the 
jurisdiction  of  the  court,  service  of  a  subpoena  upon  his  solicitor 
in  the  former  suit  may  be  allowed  by  the  court.26  The  usual 
defense  to  a  bill  of  review  for  errors  apparent  upon  the  face  of 
the  decree  is  by  demurrer ; 27  to  which  is  usually  joined  a  plea 
setting  forth  in  full  the  original  decree,  although  there  seems 
to  be  no  necessity  for  this  practice.28  If  the  demurrer  is  over- 
ruled, the  decree  is  reversed  or  modified  and  the  errors  allowed, 
and  no  further  answer  or  hearing  is  necessary.29  If  the  demurrer 
is  sustained,  that  has  all  the  effect  of  confirming  the  decree,  and 
puts  an  end  to  the  suit.30  The  rule  is  in  such  a  case  only  to 
vary  the  decree  upon  such  errors  as  are  complained  of,  except 
as  to  consequential  directions,  which  will  be  altered  to  conform 
to  the  changes  made.31  If  a  bill  of  review  for  apparent  error 
contain  a  statement  of  the  evidence  taken  in  the  original  cause, 
that  may  be  stricken  out  of  the  bill  as  surplusage  on  motion  ; 32 
or  it  may  be  a  ground  of  demurrer,  if  specially  assigned ; m  but 
the  bill,  if  otherwise  good,  cannot  be  dismissed  for  that  reason 
upon  a  general  demurrer.34  According  to  Lord  Redesdale : 
"  When  any  matter  beyond  the  decree  is  to  be  offered  against 
opening  the  enrolment,  as  length  of  time,  that  matter  must  be 

»  Perry  v.  Phelips,  17  Ves.  173.  28  Mitford's  PI.  ch.  2,  §  2,  pt.  1,  5. 

22  Buffington  v.  Harvey,  95  U.  S.  99.  ®  Cook  v.  Bamfield,  3  Swanst.  607. 

23  Mitford's  PI.  ch.  1,  §  3,  pt.  3.  80  Webb  v.  PjII,  3  Paige  (N.  Y.),  368. 
21  Oglesby  v.  Attrill,  12  Fed.  R.  227.  31  Moore   v.  Moore,  2  Ves.  Sen.  596, 

See  §  21.     '  598. 

25  Mr.  Justice  Bradley  in  Barrow   v.        32  Mr.  Justice  Bradley  in   Buffington 
Hunton,  99  U.  S.  80,  83.  v.  Harvey,  95  U.  S.  99. 

26  See  §  96.  33  Buffington  v.  Harvey,  95  U.  S.  99. 
37  Mitford's  PI  ch.  2,  §  2,  pt.  1,  5.  34  Buffington  v.  Harvey,  95  U.  S.  99. 


§  357.]  BILLS   IN   THE   NATURE   OF   BILLS   OF  REVIEW.  525 

pleaded  ;  otherwise  the  plaintiff  will  not  have  the  benefit  of 
exceptions,  as  infancy,  coverture,  or  the  like."35  "  A  bill  of  review 
upon  the  discovery  of  new  matter  and  a  supplemental  bill  of 
the  same  nature  being  exhibited  only  by  leave  of  the  court,  the 
ground  of  the  bill  is  generally  well  considered  before  it  is 
brought ;  and  therefore  in  point  of  substance  it  can  rarely  be 
liable  to  a  demurrer.  But  if  brought  upon  new  matter,  and 
the  defendant  should  think  that  matter  not  relevant,  probably 
he  might  take  advantage  of  it  by  way  of  demurrer,  although 
the  relevancy  ought  to  be  considered  at  the  time  leave  is  given 
to  bring  the  bill."36  If  a  demurrer  to  such  a  bill  of  review  or 
supplemental  bill  be  overruled,  it  does  not  dispose  of  the  cause  ; 
and  the  defendant  must  answer,  because  fact  is  at  issue.37  If 
the  demurrer  is  allowed,  however,  the  suit  is  at  an  end.38  The 
defendant  may,  it  seems,  traverse,  and  attempt  to  disprove  the 
allegations  concerning  the  discovery  of  the  new  facts.39  Upon 
the  argument  of  the  demurrer,  nothing  can  be  read  except  the 
bill  of  review  and  the  decree,40  together  with,  in  the  Federal 
Courts,  the  record41  in  the  original  suit;  but,  after  the  demurrer 
has  been  overruled,  the  plaintiff  is  at  liberty  to  read  any  evi- 
dence that  was  submitted  therein,  as  at  a  rehearing,  the  cause 
being  then  equally  open.42  Filing  a  bill  of  review  does  not 
prevent  the  execution  of  the  decree  impeached.43  The  court 
has  power  when  sustaining  such  a  bill  to  set  aside  a  convey- 
ance made  in  pursuance  of  the  decree.44 

§  357.  Bills  in  the  Nature  of  Bills  of  Review.  —  As  has  been 
said  above,1  only  parties  to  the  decree  impeached  or  their  privies 
by  operation  of  law,  as  heirs,  executors,  or  administrators,  are 
entitled  to  file  a  bill  of  review ;  but  other  persons  in  interest  and 
in  priority  of  estate,  who  are  aggrieved  by  the  decree,  can  have 
the  same  relief  by  means  of  a  bill  in  the  nature  of  a  bill  of  re- 
view.2 Such  are  assignees,  devisees,  and  remaindermen  of  the 
original  unsuccessful  parties.3     Lord   Redesdale  also  speaks  as 

85  Mitford's  PI.  ch.  2,  §  2,  pt.  2.  States,  13  Pet.  13;  Story's  Equity  Plead- 

»B  Mitford's  PI.  ch.  2,  §  2,  pt.  2.  ing,  §  407. 

87  Cook  v.  Banifield,  3  Swanst.  607.  42  Catterall  v.  Purchase,  1  Atk.  200. 

W  .Mitford's  PL  ch.  2,  §  2,  pt.  2.  43  Williams  v.  Mellish,  1  Vera.  117,  n. 

39  Dexter   v.   Arnold,  5    Mason,   303 ;  «  Bank  of  the  United  States  v.  Ritchie, 

U.    S.    v.    Sampeyreac,     Herapst    118;  8  Pet.  128. 

Story's  Eq.  PI.  §  420,  n.  7.  §  357.   J  See  §  356. 

«  Catterall  v.  Purchase,  1  Atk.  290.  -  Story's  Eq.  PI.  §  409. 

41   Whiting    v.    Bank    of    the    United  B  Story's  Eq.  PI.  §  409;    Whiting  v. 


526  CORRECTION   OF   DECREE.  [CHAP.  XXVII. 

follows  concerning  such  a  bill :  "  If  a  decree  is  made  against  a 
person  who  has  no  interest  at  all  in  the  matter  in  dispute,  or  had 
not  such  an  interest  as  was  sufficient  to  render  the  decree 
against  him  binding  upon  some  person  claiming  the  same  or  a 
similar  interest,  relief  may  be  obtained  against  error  in  the  decree 
by  a  bill  in  the  nature  of  a  bill  of  review.  Thus,  if  a  decree  is 
made  against  a  tenant  for  life  only  ;  a  remainderman  in  tail,  or 
in  fee,  cannot  defeat  the  proceedings  against  the  tenant  for  life, 
but  by  a  bill,  showing  the  error  in  the  decree,  the  incompetency 
in  the  tenant  for  life  to  sustain  the  suit,  and  the  accruer  of  his 
own  interest,  and  thereupon  praying  that  the  proceedings  in  the 
original  cause  may  be  reviewed,  and  for  that  purpose  that  the 
other  party  may  appear  to  and  answer  this  new  bill,  and  that 
the  rights  of  the  parties  may  be  properly  ascertained.  A  bill  of 
this  nature,  as  it  does  not  seek  to  alter  a  decree  made  against  the 
plaintiff  himself,  or  against  any  person  under  whom  he  claims, 
ma}r  be  filed  without  the  leave  of  the  court."4  Otherwise,  the 
frame  of  and  proceedings  under  bills  in  the  nature  of  bills  of 
review  are  substantially  the  same  as  those  relating  to  bills  of 
review. 

§  358.  Bills  to  impeach  Decrees  on  Account  of  Fraud.  —  "If  a 
decree  has  been  obtained  by  fraud,  it  may  be  impeached  by 
original  bill  without  the  leave  of  the  court ;  the  fraud  used  in 
obtaining  the  decree  being  the  principal  point  in  issue,  and  neces- 
sary to  be  established  by  proof  before  the  propriety  of  the  decree 
can  be  investigated.  And  where  a  decree  has  been  so  obtained  the 
court  will  restore  the  parties  to  their  former  situation,  whatever 
their  rights  maybe."1  Such  a  bill  has  been  called  an  original 
bill  in  the  nature  of  a  bill  of  review.2  There  are  dicta  stating 
that  a  decree  obtained  by  fraud  may  be  set  aside  upon  petition ; 3 
but  it  was  finally  settled  that  after  enrolment  a  decree  could 
only  be  impeached  for  this  account  by  an  original  bill.4  This  is 
the  only  manner  in  which  a  decree  entered  by  consent  can  be 

Bank  of  the  United  States,  13  Pet.  6;  Mo.  Pacific  Ry.  Co.,  Ill  United  States, 

Singleton  v.  Singleton,  8  B.  Monr.  (Ky.)  605. 

340 ;  Turner  v.  Berry,  38  111.  541.  2  Mussel  v.  Morgan,  3  Bro.  Ch.  R.  74, 

4  Mitford's  PI.  ch.  1,  §  2,  pt.  3.  79;  Story's  Eq.  PI.  §  426. 
§  358.   !  Mitford's  PI.  ch.  1,  §  2,  pt.  3.  3  Sheldon  v.   Fortescue  Aland,  3    P. 

See  also  Story's  Eq.  PI.  §  426  ;  Richmond  Wms.  104,  111  ;  Story's  Eq.  PI.  §  426. 
v.  Tayleur,  1  P.  "Wins.  734  ;  Barnesle  v.  4  Mussel  v.  Morgan,  3   Bro.    Ch.   R. 

Powell,  1  Ves.  Sen.  120;  Evans  e.  Bacon,  74,  79;  Bennett  v.  Hamill,  2  Sch.  &  Lefr. 

99  Mass.  213 ;  Pacific  R.  R.  of  Mo.  v.  566,  576 ;  Story's  Eq.  PI.  §  426. 


§  359.]     BILLS  TO  SUSPEND  THE  OPEKATION  OF  DECREES.     527 

impeached.5    Decrees  entered  by  collusion,6  or  surprise,7  may  also 
be  rectified  in  this  manner.      Certain   other  cases,  although  if 
logical  arrangement  solely  were  considered  they  should  be  con- 
sidered under  other  heads,  yet  as  they  are  usually  spoken  of  in 
this  connection  by  the  books,  may  be  here  referred  to.     Lord 
Redesdale  uses  the  following  language,  which  has  been  copied 
by  all  subsequent  text- writers :  "  Besides  cases  of  direct  fraud  in 
obtaining  a  decree,  it  seems  to  have  been  considered,  that  where 
a  decree  has  been  made  against  a  trustee,  the  cestui  que  trust  not 
being  before  the  court  and  the  trust  not  discovered ;  or  against  a 
person  who  has  made  some  conveyance  or  incumbrance  not  dis- 
covered ;  or  when  a  decree  has  been  made  in  favor  of  or  against 
an  heir,  when  the  ancestor  has  in  fact  disposed  by  will  of  the 
subject  matter  of  the  suit ;  the  concealment  of  the  trust  or  sub- 
sequent conveyance,  or  incumbrance,   or  will,  in  these   several 
cases,  ought  to  be  treated  as  a  fraud.     It  has  been  also  said  that 
where  an  improper  decree  has  been  made  against  an  infant,  with- 
out actual  fraud,  it  ought  to  be  impeached  by  original  bill."8     A 
bill  to  set  aside  a  decree  for  fraud  must  state  the  decree,  and  the 
proceedings  which  led  to  it,  with  the  circumstances  of  fraud  on 
which  it  is  impeached.9     All  the  parties  to  the  original  suit  or 
their  representatives  should  be  joined  as  parties  to  it.10     It  mav 
be  filed  in  a  Federal,  to  set  aside  a  decree  made   by  a  State 
court.11 

§  359.  Bills  to  Suspend  or  Avoid  the  Operation  of  Decrees.  — 
Lord  Redesdale  speaks  as  follows  concerning  bills  to  suspend 
the  operation  of  decrees  :  "  The  operation  of  a  decree  sigued 
and  enrolled  has  been  suspended  on  special  circumstances,  or 
avoided  by  matter  subsequent  to  the  decree,  upon  a  new  bill  for 
that  purpose.  Thus  during  the  troubles  after  the  death  of  Charles 
the  First,  upon  a  decree  for  a  foreclosure  in  case  of  non-payment 
of  principal,  interest  and  costs  due  on  a  mortgage,  the  mortgagor 
at  the  time  of  payment  being  forced  to  leave  the  kingdom  to 
avoid  the  consequences  of  his  engagements  with  the  royal  party, 

5  Buck  v.  Fawcett,  3  P.  Wms.  242  ;  8  Mitford's  PI.  oh.  1,  §  2,  pt.  3. 

Davenport  v.  Stafford,  8  Beav.  503 ;  Gil-  9  Mitford's  PI.  ch.  1,  §  2,  pt.  3  ;  Story's 

bert  v.  Endean,  L.  R.  9  Ch.  D.  259;   Se-  Eq.  PI.  §  476. 

ton  on  Decrees  (4th  ed.),  1536.  "  Harwood  v.  Railroad  Co.,  17  Wall. 

0  Buck  v.  Fawcett,  3    P.    Wins.  242;  78. 

Story's  Eq.  PI.  §§  420-428.  «  Gaines  v.  Fuentos.  92  U.  S.  10;   Bar- 

7  Stevens  v.  Guppy,  1  Turn.  &  Rus.  row  v.  ilunton,  99  U.  S.  80. 
178. 


528  CORRECTION    OF   DECREE.  [CHAP.  XXVII. 

and  having  requested  the  mortgagee  to  sell  the  estate  to  the 
best  advantage  and  pay  himself,  which  the  mortgagee  appeared 
to  have  acquiesced  in ;  the  court  upon  a  new  bill  enlarged  the 
time  for  performance  of  the  decree,  upon  the  ground  of  the 
inevitable  necessity  which  prevented  the  mortgagor  from  comply- 
ing with  the  strict  terms  of  it,  and  also  made  a  new  decree  on 
the  ground  of  the  matter  subsequent  to  the.  former  decree."1 
"  The  embarrassments  occasioned  by  the  civil  war  in  the  reign  of 
Charles  I.,  and  the  state  of  affairs  after  his  death,  before  the 
restoration  of  Charles  II.,  occasioned  many  extraordinary  appli- 
cations to  the  court  of  Chancery  for  relief,  and  perhaps  induced 
the  court  to  go  far  in  extending  relief;  but  there  were  many 
cases  of  extreme  hardship  in  which  it  was  deemed  impossible, 
consistently  with  established  principles,  to  give  relief;  and  all 
cases  determined  soon  after  the  restoration,  upon  circumstances 
connected  with  the  prior  disturbed  state  of  the  country,  ought 
to  be  considered  with  much  caution." 2 

§  359.   1  Mitford's  PI.  ch.  1,  §  2,  pt.  3;     2;  Whorewood  v.  Whorewood,  1  Ch.  Cas. 
Cocker  v.  Bevis,  1  Ch.  Cas.  61 ;  and  also     250;  Wakelin  v.  Walthal,  2  Ch.  Cas.  8. 
referring  to  Venables  v.  Foyle,  1  Ch.  Cas.  2  Mitford's  PI.  ch.  1,  §  2,  pt.  3. 


§  360.]  COMMON-LAW   PRACTICE   IN   GENERAL.  529 


CHAPTER  XXVIII. 

PRACTICE   AT   COMMON   LAW. 

§  360.  Common-Law  Practice  in  General.  —  Actions  at  common 
law  are  either  civil  or  criminal.  The  Supreme  Court  considers 
the  practice  of  the  court  of  King's  Bench  in  England  as  affording 
outlines  for  its  practice  at  common  law.1  In  civil  actions  at 
common  law  the  Circuit  and  District  Courts  follow  in  general 
the  practice  in  the  courts  of  the  State  where  they  are  held,  ex- 
cept in  those  particulars  which  are  regulated  by  Federal  statute.2 
The  Revised  Statutes  provide,  that,  "  the  practice,  pleadings  and 
forms  and  modes  of  proceeding  in  civil  causes,  other  than 
equity  and  admiralty  causes,  in  the  Circuit  and  District  Courts 
shall  conform,  as  near  as  may  be,  to  the  practice,  pleadings  and 
forms,  and  modes  of  proceeding  existing  at  the  time  in  like  causes 
in  the  courts  of  record  of  the  State  within  which  such  Circuit  or 
District  Courts  are  held,  any  rule  of  court  to  the  contrary  not- 
withstanding."3 The  phrase  "as  near  as  may  be"  has  been 
held  not  to  mean  "  as  near  as  may  be  possible,"  nor  "  as  near  as 
may  be  practicable,"  4  but  to  devolve  upon  the  Federal  courts  the 
duty  of  construing  and  deciding,  and  to  give  them  the  power  to 
reject  any  subordinate  provision  in  such  State  statutes,  which  in 
their  judgment  would  unwisely  encumber  the  administration  of 
the  law,  or  tend  to  defeat  the  ends  of  justice  in  their  tribunals.5 
The  State  practice  will  not  be  so  far  followed  as  to  permit  an 
equitable  defense  to  be  pleaded  in  an  action  at  common  law.6 
It  has  been  held  at  circuit,  that,  no  matter  what  the  State 
practice  may  be,  a  denial  of  allegations  of  jurisdictional  facts  in 
the  plaintiff's  declaration  or  other  pleading  at  law  can  only  be 

§  360.  i  Svipreme  Court  Rule  3.  *  I.  &  St.  L.  R.  R.  Co.  v.  Horat,  93 

2  U.  S.  R.  S.  §  91 1.  U.  S.  291,  301 ;  Phelps  v.  Oaks,  117  U.  S. 

s  U.  S.  R.  S.  §  014.  236,  239. 

4  Indianapolis  &  St.  L.  R.  R.  Co.  v.         6  Doe   v.   Roe,   31    Fed.  R.   97.     See 

Horst,  98  IT.  S.  201,  301 ;  Phelps  v.  Oaks,  Northern  Pac.  R.  R.  Co.  v.  Paine,   119 

117  U.  S.  2oG,  239.  U.  S.  601 ;  §  t). 

34 


530 


PRACTICE    AT   COMMON   LAW. 


[CHAP.  XXVIII. 


made  by  a  special  plea  to  the  jurisdiction,  and  is  waived  by  a 
general  denial  or  by  a  plea  to  the  merits ;  although  the  court 
may  of  its  own  motion  institute  at  any  time  an  inquiry  into 
the  truth  of  such  facts.7  In  the  following  particulars  is  practice 
at  common  law  in  civil  cases  in  the  Circuit  and  District  Courts 
of  the  United  States  regulated  by  Federal  statutes:  writs 
and  process,8  provisional  remedies,9  abatement  and  revivor,10 
consolidation  of  suits,11  evidence,  testimony  and  depositions,12 
trials,13  motions  for  new  trials,14  judgments,15  correction  of 
judgments,16  costs,17  executions  and  proceedings  supplementary 
thereto,18  contempts,19  and  bills  of  exceptions.20  In  criminal 
actions,  the  Circuit  and  District  Courts  follow  the  old  practice 
at  common  law,  except  in  so  far  as  the  same  has  been  changed 
by  a  Federal  statute.21  It  has  been  held  that  in  the  following 
cases  the  Federal  Court  will  in  civil  actions  at  common  law  follow 
the  statutes  of  the  respective  States  where  they  are  held:  form 
of  writ,22  endorsement  of  writ,23  endorsement  of  summons,24 
service  of  writ  and  process,25  joinder  of  causes  of  action,26 
joinder  of  parties,27  verification  of  pleading,28  time29  and  man- 
ner30 of  service  of  pleading  and  amendment  of  pleading,31 
granting  of  order  of  interpleader,32  notice  of  trial  or  argument,33 


7  Imperial  Refining  Co.  v.  "Wyman, 
38  Fed.  R.  674.  Contra,  Ehrman  v.  Teu- 
tonia  Ins.  Co.,  1  Fed.  R.  471;  Draper 
v.  Town  of  Sprin^port,  15  Fed.  R.  328. 
See  Rubel  v.  Beaver  Falls  Cutlery  Co., 
22  Fed.  R.  282. 

8  §  361. 

9  §§  369-370. 
io  §  373. 

«  §  371. 
12  §  372. 
»  §  374. 
"  §  376. 


is  §  379. 

17  Chapter  XXV.  But  see  Huntress  v. 
Town  of  Epsom,  15  Fed.  R.  732;  New 
Hampshire  Land  Co.  v.  Tilton,  29  Fed.  R. 
764. 

i8  §  380. 

is  §§  341-346. 

20  §  377. 

si  U.  S.  v.  Maxwell,  3  Dill.  275 ;  U.  S. 
v.  Nye,  4  Fed.  R.  888 ;  U.  S.  v.  Reid,  12 
How.  (U.  S.)  361;  Erwin  v.  U.  S.  37 
Fed.  R.  470,  488. 


22  Brown  v.  Chesapeake  &  Ohio  Canal 
Co.,  4  Fed.  R  770.  See  Baltimore  &  O. 
R.  Co.  v.  Hamilton,  16  Fed.  R.  181.  But 
see  §  361. 

£3  Brown  v.  Pond,  5  Fed.  R.  31,  37. 
But  see  §  361. 

2*  U.  S.  v.  Rose,  14  Fed.  R.  681. 

25  Shampeau  v.  Connecticut  River  Lum- 
ber Co.,  37  Fed.  R.  771 ;  Wilson  v.  Fine, 
38  Fed.  R.  789 ;  Amy  v.  Watertown,  130 
U.  S.  301. 

26  Castro  v.  De  Uriarte,  12  Fed.  R.  251. 

27  Perry  v.  Mechanics'  Mutual  Ins.  Co., 
11  Fed.  R.  478. 

28  West  v.  Home  Ins.  Co.,  18  Fed.  R. 
622;  Cottier  v.  Stimson,  18  Fed.  R.  689. 

29  Ricard  v.  Inhabitants  of  Township 
of  New  Providence,  5  Fed.  R.  433. 

3)  Wilson  v.  Fine,  38  Fed.  R.  789. 

3i  Rosenbach  v.  Dreyfuss,  1  Fed.  R. 
391.  But  see  U.  S.  R.  S.  §  954;  Erstein 
v.  Rothschild,  22  Fed.  R.  61. 

82  Harris  v.  Hess,  10  Fed.  R.  263.  See 
§  88  for  practice  in  equity. 

38  Rosenbach  v.  Dreyfuss,  2  Fed.  R.  23. 


§  361.]  WRITS   AND   PROCESS   IN   GENERAL.  531 

opening  judgment  by  default,34  suspension  of  judgment  pending 
writ  of  error.35 

§  361.  Writs  and  Process  in  General.  —  The  Revised  Statutes 
provide  that  "  all  writs  and  processes  issuing  from  the  courts  of 
the  United  States  shall  be  under  the  seal  of  the  court  and  shall 
be  signed  by  the  clerk  thereof."  l  Consequently  a  rule  of  State 
practice  which  permits  an  attorney  to  issue  a  summons,  subpoena, 
or  other  process  without  the  seal  of  the  court  or  the  signature 
of  the  clerk,  will  not  be  followed  by  the  Federal  court ; 2  and  a 
summons  issued  without  such  seal  and  signature  is  void,  and  can- 
not be  cured  by  amendment.3 

Writs  and  process  which  issue  from  the  Supreme  Court  or  a 
Circuit  Court  must  bear  teste  of  the  Chief  Justice  of  the  United 
States,  or,  when  that  office  is  vacant,  of  the  associate  justice  next 
in  precedence,  and  those  issuing  from  a  District  Court  must  bear 
teste  of  the  judge  of  that  court  or,  when  that  office  is  vacant, 
of  the  clerk  thereof.4  All  process  must  bear  teste  from  the  day 
of  its  issue.5 

The  Supreme  Court  has  power  to  issue  writs  of  prohibition 
to  the  District  Courts  when  proceeding  as  courts  of  admiralty 
and  maritime  jurisdiction,6  and  power  to  issue  writs  of  man- 
damus to  any  courts  appointed  under  the  authority  of  the 
United  States;  and  where  a  State,  public  minister,  consul,  or 
vice-consul  is  a  party,  to  persons  holding  office  under  the  author- 
ity of  the  Uuited  States.7  The  Supreme  Court,  the  Circuit 
Courts,  and  the  District  Courts  have  power  to  issue  writs 
of  scire  facias,  and  all  writs,  not  specifically  provided  for  by 
statute,  which  are  necessary  for  the  exercise  of  their  respective 
jurisdictions  and  agreeable  to  the  usages  and  principles  of 
law.8 

The  Revised  Statutes  provide  that  "  No  summons,  writ,  decla- 
ration, return  process,  judgment,  or  other  proceedings  in  civil 
causes,  in  any  court  of  the  United  States,  shall  be  abated,  ar- 
rested, quashed,  or  reversed  for  any  defect  or  want  of  form  ;  but 

»  Brown  v.  Phila.,  W.  &  B.  R.  Co.,  9  3  Dwight  v.  Merritt,  4  Fed.  R.  614; 

Fed.  R.  183.     But  see  §  379.  Feaslee  v.  Haberstro,  15  Blatchf.  472. 

85  United  States  v.  Sturgis,  14  Fed.  R.  4  U.  S.  R.  S.  §  911. 

810.  5  U.  S.  R.  S.  §  912. 

§  361.   i  U.  S.  R.  S.  §  911.  6  U.  S.  R.  S.  §  688.     See  §  862. 

"  Dwight  v.  Merritt,  4  Fed.  R.  614;  »  U.  S.  R.  S.  §  688.     See  §  363. 

Peaslee  v.  Haberstro,  15  Blatchf.  472.  8  U.  S.  R.  S.  §  710. 


532  PRACTICE   AT   COMMON   LAW.  [CHAP.  XXVIII. 

such  court  shall  proceed  and  give  judgment  according  as  the 
right  of  the  cause  and  matter  in  law  shall  appear  to  it,  without 
regarding  any  such  defect,  or  want  of  form,  except  those  which, 
in  cases  of  demurrer,  the  party  demurring  specially  sets  down, 
together  with  his  demurrer  as  the  cause  thereof;  and  such  court 
shall  amend  every  such  defect  and  want  of  form,  other  than  those 
which  the  party  demurring  so  expresses  ;  and  may  at  any  time 
permit  either  of  the  parties  to  amend  any  defect  in  the  process  or 
pleading,  upon  such  conditions  as  it  shall,  in  its  discretion  and  by 
its  rules,  prescribe." 9  The  Revised  Statutes  make  it  the  mar- 
shal's duty  to  execute,  throughout  the  district,  all  lawful  pre- 
cepts directed  to  him  and  issued  under  the  authority  of  the 
United  States,10  and  give  all  his  deputies  the  same  powers  as  the 
sheriffs  in  the  same  State  and  their  deputies.11  It  has  been  held 
at  circuit  that  process,  other  than  subpoenas  ad  testificandum^ 
can  only  be  served  by  the  marshal  or  his  deputy ; 13  but  that, 
when  the  laws  of  the  State  give  such  power  to  a  sheriff,  the  mar- 
shal may  appoint  a  person  to  serve  a  particular  writ  or  perform 
any  other  special  service.14  The  Supreme  Court  has  said,  speak- 
ing of  the  act  requiring  a  conformity  with  the  State  practice  in 
actions  at  common  law :  "  There  can  be  no  doubt,  we  think,  that 
the  mode  of  service  of  process  is  within  the  categories  named  in 
the  act."  15  That  court  has  held  that  corporations  can  be  served 
in  actions  at  common  law  only  in  the  manner  prescribed  by  the 
State  statutes.16 

§  362.  "Writs  of  Prohibition.  —  A  writ  of  prohibition  is  a  writ 
issuing  out  of  a  court  of  superior  jurisdiction,  and  directed  to  an 
inferior  court  for  the  purpose  of  preventing  the  inferior  tribunal 
from  usurping  a  jurisdiction  to  which  it  is  not  entitled.1  The 
writ  of  prohibition  is  a  civil  proceeding  even  when  designed  to 
stop  a  criminal  proceeding.2 

9  U.  S.  R.  S.  §  954.  "  Hyman  v.  Chales,  12  Fed.  R.  855. 

10  U.  S.  R.  S.  §  787.  15  Amy  v.  Watertown,  130  U.  S.  301, 

"  U.  S.  R.  S.  §  788.  304. 

12  Russell    v.    Ashley,    Hempst.    546;        16  Amy  v.  Watertown,  130  U.  S.  301. 
Miller  <;.  Scott,6  Pliila.  (Pa.)  484;  Schwa-        §  362.   »  High  on  Extraordinary  Rem- 
backer  v.  Reilly,  2  Dill.  127.  edies.  §  762. 

13  Schwabacker  v.  Reilly,  2  Dill.  127.  2  Farmworth  v.  Montana,  129  U.  S- 
But  see  Amy  v.  Watertown,  130  U.  S.  104,  113;  Smith  v.  Whitney,  116  U.  S 
301,  304 ;  Hyman  v.  Chales,  12  Fed.  R.  167. 

855;  U.  S.  v.  Jailer  of  Fayette  County, 
2  Abb.  U.  S.  265. 


§  363.]  MANDAMUS.  533 

The  Supreme  Court  has  power  to  issue  writs  of  prohibition 
to  the  District  Courts  of  the  United  States  when  proceeding 
as  courts  of  admiralty.3  The  Supreme  Court  has  no  power  to 
issue  a  writ  of  prohibition  in  any  other  case,  except  when 
necessary  for  the  exercise  of  its  jurisdiction  in  some  matter 
before  it.4 

The  usual  practice  is,  upon  an  application  in  the  name  of  the 
United  States  on  the  relation  of  the  party  aggrieved,  for  the 
court  to  grant  a  rule  to  the  judge  sought  to  be  prohibited,  to 
show  cause  why  the  writ  should  not  issue,  and  to  accompany  the 
rule  with  an  order  that  he  proceed  no  further  in  the  case  till  the 
decision  of  the  Supreme  Court  in  the  premises.5  It  has  been 
said  that  when  the  suit  complained  of  is  brought  by  a  private 
person  the  judge  may  be  joined  as  a  defendant ;  but  that  when 
it  is  a  suit  or  prosecution  on  behalf  of  the  government  the  writ 
of  prohibition  can  go  to  the  court  only.6  The  proceedings  of  a 
court-martial  cannot  be  prohibited  by  such  a  writ  addressed  to 
an  officer  who  ordered  the  court-martial  to  convene,  but  is  not 
himself  a  member  of  it.7 

The  writ  of  prohibition  cannot  be  used  to  correct  errors  of  a 
court  in  deciding  matters  of  law  or  fact  within  its  jurisdiction,8 
nor  to  undo  what  has  been  done.9  "  The  only  effect  of  the  writ 
is  to  suspend  all  action,  and  to  prevent  any  further  proceeding 
in  the  prohibited  direction."  10 

No  Circuit  or  District  Court  of  the  United  States  has  the 
power  to  issue  a  writ  of  prohibition  except  when  necessary  for  the 
exercise  of  its  jurisdiction  in  some  matter  previously  before  it.11 

§  363.  Mandamus.  —  The  writ  of  mandamus  is  a  command 
issuing  in  the  name  of  the  United  States  directed  to  a  person, 
corporation,  or  inferior  court  within  its  jurisdiction,  requiring 
them  to  do  some  particular  thing  therein  specified,  which  per- 
tains to  their  office  or  duty,  and  which  the  court  issuing  the 
writ  determines  to  be  their  duty.1 

'  U.  S.  R.  S.  §  688;  Ex  parte  Phoenix  7  Smith  v.  Whitney,  116  IT.  S.  167,  176. 

Ins.  Co.,  118  U.  S.  610.  8  Smith  v.  Whitney,  116  U.  S.  167, 

*  Ex  parte  Gordon,  1  Black,  503 ;  In  176. 

re  Christy,  3  How.  202  ;    Ex  parte  War-  9  U.  S.  v.  Hoffman,  4  Wall.  158. 

mouth,  17  Wall.  64  ;   Ex  parte  Graham,  10  U.  S.  v.  Hoffman,  4  Wall.  158. 

10  Wall.  541.  "  U.  S.  R.  S.  §  716;    lie  Bininger,  7 

5  U.  S.  v.  Hoffman,  4  Wall.  158.  Blatchf.  159. 

«  Smith  v.  Whitney,  116   U.  S.  167,  §  363.   »  Ex  parte  Crane,  5  Pet.  189, 

176,  per  Gray,  J.  190. 


£34 


PRACTICE   AT   COMMON   LAW. 


[CHAP.  XXVIII. 


The  Supreme  Court  has  power  to  issue  writs  of  mandamus, 
in  cases  warranted  by  the  principles  and  usages  of  law,  to  any 
courts  appointed  under  the  authority  of  the  United  States;2  or 
where  a  State  or  an  ambassador,  or  other  public  minister,  or  a 
consul  or  vice-consul  is  a  party,  to  persons  holding  office  under 
the  authority  of  the  United  States.3  The  Constitution  prohibits 
the  grant  to  that  court  of  any  further  original  jurisdiction  to 
issue  writs  of  mandamus  to  officers  of  the  United  States.4  The 
constitutionality  of  the  grant  to  the  Supreme  Court  of  power  to 
issue  writs  of  mandamus  to  other  courts  of  the  United  States 
has  been  upheld  on  the  ground  that  such  a  writ  is  in  the  nature 
of  appellate  jurisdiction.5 

A  mandamus  will  issue  to  compel  a  court  to  exercise  its  dis- 
cretion in  one  way  or  another.6  A  mandamus  has  been  issued  to 
compel  a  court  to  proceed  in  a  case  which  it  had  dismissed  or 
remanded  for  want  of  jurisdiction,  when  the  record  before  the 
lower  court  showed  its  jurisdiction ; 7  but  not  when  through 
mistake  a  paper  showing  the  jurisdiction  was  not  in  the  record 
and  before  the  court.8  The  writ  of  mandamus  has  been  granted 
to  compel  the  allowance  of  an  appeal,9  provided  the  applicant  is 
a  party  to  the  suit  ;10  to  compel  a  judge  to  settle  a  bill  of  excep- 
tions and  to  sign  the  same  after  it  has  been  settled  by  him,11  but 
not  to  sign  a  bill  of  exceptions  which  he  considers  does  not  state 
correctly  the  proceedings  before  him ;  n  to  compel  a  court  to  pro- 
ceed in  a  suit  which  it  had  improperly  stayed;13  to  compel  a  court 
to  proceed  to  judgment,14  and  when  the  act  of  signing  the  judg- 
ment is  purely  ministerial,  to  compel  a  court  to  sign  the  same  ; 15 


2  IT.  S.  R.  S.  §  688. 

3  U.  S.  R.  S.  §  688. 

4  Marbury  v.  Madison,  1  Cranch,  137. 

5  Ex  parte  Crane,  5  Pet.  189,  190. 

6  Ex  parte  Crane,  5  Pet.  189,  190;  Ex 
parte  Morgan,  114  U.  S.  174;  Ex  parte 
Parker,  120  U.  S.  737. 

7  Insurance  Co.  v.  Comstock,  16  Wall. 
258;  Railroad  Co.  v.  Wiswall,  23  Wall. 
507 ;  Hoadley  v.  San  Francisco,  94  U.  S. 
4 ;  Ex  parte  Schollenberger,  96  U.  S.  369 ; 
Ex  parte  Railway  Co.,  103  U.  S.  794;  Ex 
parte  Baltimore  &  O.  R.  R.  Co.,  108  U.  S. 
566;  Hollon  Parker,  Petitioner,  131  U.  S. 
221.  But  see  In  re  Burdett,  127  U.  S. 
771. 

8  In  re  Sherman,  124  U.  S.  364. 


9  Ex  parte  Jordan,  94  U.  S.  248 ;  Ex 
parte  Railroad  Co.,  95  U.  S.  221 ;  Vigo'a 
Case,  21  Wall.  648. 
io  Ex  parte  Cutting,  94  U.  S.  14. 

11  Chateaugay  Ore  &  Iron  Co.,  Peti- 
tioner, 128  U.  S.  544.  See  Ex  parte 
Crane,  5  Pet.  189,  190. 

12  Ex  parte  Bradstreet,  4  Pet.  102. 

13  Livingston  v.  Dorgenois,  7  Cranch, 
577.  But  see  Ex  parte  Bradstreet,  8 
Pet.  588. 

14  Life  &  Fire  Ins.  Co.  v.  Wilson,  8  Pet. 
291 ;  Life  &  Fire  Ins.  Co.  v.  Adams,  9 
Pet.  571. 

15  Ex  parte  Bradstreet,  6  Pet.  774  ;  Life 
&  Fire  Ins.  Co.  v.  Wilson,  8  Pet  291 ;  Ex 
parte  Many,  14  How.  24. 


§  363.]  MANDAMUS.  535 

to  compel  a  court  to  execute  a  judgment  it  had  rendered ;  16 
to  compel  a  court  to  execute  a  previous  maudate  of  the  Supreme 
Court ; 17  and  to  compel  the  reinstatement  of  an  attorney  who 
has  been  disbarred,  in  a  case  of  which  the  court  had  not  juris- 
diction or  acted  with  flagrant  impropriety.18 

A  mandamus  will  not  be  issued  when  there  is  any  other  appro- 
priate relief ; 19  —  as,  for  example,  by  writ  of  error  or  appeal,20  nor 
to  control  the  exercise  of  discretion,21  except,  possibly,  in  case  of 
a  very  flagrant  abuse  of  discretion.22  The  writ  of  mandamus  has 
been  denied  when  asked  to  compel  a  court  to  allow  or  refuse  an 
amendment  of  a  pleading,23  to  order  the  withdrawal  of  a  plea,24 
to  allow  the  filing  of  double  pleas,25  to  vacate  interlocutory 
orders  which  do  not  terminate  the  suit,26  to  vacate  a  preliminary 
injunction,27  to  vacate  an  order  setting  aside  a  nonsuit,28  to  open 
a  default,29  to  quash  a  writ  of  execution,30  to  diminish  the  amount 
of  bail  required  for  a  prisoner's  discharge,31  to  approve  a  bond,32 
and  to  grant  a  rehearing.33 

The  Circuit  Courts  of  the  United  States  have  power  to  issue  a 
mandamus,  upon  motion  of  the  Attorney-General  or  any  district 
attorney  of  the  United  States,  to  compel  any  officer  of  the  United 
States  to  file  the  bonds,  make  the  returns,  and  perform  any  other 
duties  required  by  Chapter  95  of  Laws  passed  at  the  Second 
Session  of  the  Forty-third  Congress,  relating  to  costs  and  fees  ;  3i 

15  U.  S.  v.  Peters,  5  Cranch,  115;  Staf-  588;  Ex  parte  Milwaukee  R.  R.  Co.,  5 

ford  v.  Union  Bank,  1G  How.  135.  Wall.  188;  Life  &  Fire  Ins.  Co.  v.  Wil- 

"  White  v.  U.  S-,  1  Black,  501 ;  U.  S.  son,  8  Pet.  291. 

v.  Fossatt,  21  How.  445;   Ex  parte  Da-  22  Ex  parte  Bradley,  7  Wall.  304. 

buque  &  P.  R.  R.  Co.,  1  Wall.  69.     But  23  Ex  parte  Bradstreet,  7  Pet.  634. 

see  Ex  parte  Railway  Co.,  101  U.  S.  711.  2i  Bank  v.  Sweeny,  1  Pet.  567. 

18  Ex  parte  Bradley,  7  Wall.  364;  Ex  &  Ex  parte  Davenport,  6  Pet.  661. 

parte  Robinson,   19  Wall.  506.     But  see  2«  Ex  parte  Hoyt,  13  Pet.  279;  Ex  parte 

Ex  parte  Burr,  9  Wheat.  529;  Ex  parte  Whitney,    13    Pet.    404;    Gain    v.    Relf, 

Secombe,  19    How.  9  ;    Ex   parte  Wall,  15  Pet.  9  ;  Ex  parte  Perry,  102  U.  S.  183  ; 

107  U.  S.  265.  Ex  parte  Schwab,  98  U.  S.  240. 

»  Bank  of  Columbia  v.  Sweeny,  1  Pet.  *  Ex  parte  Schwab,  98  U.  S.  240 

5G7  ;  U.  S.  v.  Addison,  22  How.  174;  Ex  28  Ex  parte  Loring,  94  U.  S.  418. 

parte  Newman,  14  Wall.  162.  29  Ex  parte  Roberts,  6  Pet.  216. 

23  Ex  parte   Newman,    14   Wall.    152;  »  Ex  parte  Flippin,  94  U.  S.  348. 

Connecticut  Mutual  Life  Ins.  Co.,  Peti-  31  Ex  parte  Taylor,  14  How.  3. 

tioner,  131  U.  S.  App.  clxxx.  3-  Ex  parte   Milwaukee    R.    R.  Co.,  5 

21   Ex  part,-  Railway  Co.,  101  U.  S.  711 ;  Wall.   188. 

Ex  parte  Roberts,  6  Pet  216;  Ex  parte  33  U.  S.  v.  Bullock,  0  Pet.  485,  note. 

Davenport,  6  Pet.  661 ;  Ex  parte  Brad-  **  1   Supp.  R.  S.  145-147,  §  4 ;    18  St 

street,  7  Pet.  634  ;  Ex  parte  Bradstreet,  at  L.  ch.  95,  p.  333. 
4  Pet.  182 ;  Ex  parte  Bradstreet,  8  Pet. 


536  PRACTICE   AT   COMMON    LAW.  [CHAP.  XXVIII. 

and  to  compel  the  Union  Pacific  Railroad  Company  to  operate 
its  road  as  required  by  law.35  The  Circuit  and  the  District 
Courts  of  the  United  States  have  the  power  to  issue  a  writ  of 
mandamus  to  compel  compliance  with  the  provisions  of  the 
Interstate  Commerce  Act.36  Otherwise,  those  courts  have  no 
power  to  issue  a  writ  of  mandamus,  except  when  necessary  for 
and  ancillary  to  the  exercise  of  their  respective  jurisdiction  in 
another  matter.37  The  Circuit  Court  may,  as  ancillary  to  a  case 
of  which  it  has  appellate  jurisdiction,  issue  a  writ  of  mandamus 
to  a  District  Court  of  the  United  States.38 

The  most  frequent  instances  in  which  writs  of  mandamus  are 
issued  by  the  Circuit  Courts  of  the  United  States  are  to  compel 
the  levy  of  taxes  by  officers  of  municipal  or  other  public  corpo- 
rations to  satisfy  judgments  previously  obtained  in  the  courts 
which  issued  the  writs.39  The  writ  will  not  issue  to  compel  such 
an  officer  to  perform  a  duty  not  imposed  upon  him  by  the  law  of 
the  State  under  which  he  was  appointed.40  When  the  statute 
authorized  a  city  council  to  levy  a  tax  to  pay  a  funded  debt  "  if 
it  believe  that  the  public  good  and  the  best  interests  of  the  city 
require,"  a  mandamus  was  issued  after  judgment  to  compel  the 
levy  of  the  tax.41  A  repeal  of  the  State  statute  authorizing  the 
officer  to  levy  the  tax  does  not  divest  the  power  of  the  Federal 
court  to  compel  him  to  do  so  by  a  mandamus,  after  a  judgment 
upon  a  contract  made  before  the  repeal.42  When  the  charter  of 
the  municipal  corporation  has  been  repealed  and  its  corporate 
existence   extinguished   no   such  mandamus   can   be   granted.43 

85  17  St.  at  L.  ch.  226,  p.  509,  §  4  ;  U.  S.  39  Riggs  v.  Johnson  County,  6  Wall. 

v.  U.  P.R.  R.  Co.,  2  Dill.  527  ;  U.  P.R.  R.  166;    Davies  v.  Corbin,  112    U.  S.  36; 

Co.  v.  Hall,  91  U.  S.  343.  Commissioners    v.    Aspinwall,   24   How. 

36  25  St.  at  L.  ch.  382,  p.  862,  §  10.  376;  Supervisors  v.  U.  S.,  4  Wall.  435; 
See  TJ.  S.  v.  Delaware,  L.  &  W.  R.  Co.,  Weber  v.  Lee  County,  6  Wall.  210  ;  U.  S. 
40  Fed.  R.  101,  105.  v.  New  Orleans,  98  U.  S.  381. 

37  U.  S.  R.  S.  §  716  ;  Mclntire  v.  Wood,  40  U.  S.  v.  Macon  County,  99  U.  S. 
7  Cranch,  504 ;  McClung  v.  Sillirnan,  6  582 ;  U.  S.  v.  Labette  County,  7  Fed.  R. 
Wheat.  598;  Graham  v.  Norton,  15  Wall.  318;  U.  S.  v.  County  of  Clark,  95  U.  S. 
427;  Bath  County  v.  Amy,  13  Wall.  244 ;  769;  Memphis  v.  U.  S.,  97  U.  S.  293; 
County  of  Greene  v.  Daniel,  102  U.  S.  Brownsville  v.  Loague,  129  U.  S.  493. 
187  ;  Davenport  v.  County  of  Dodge,  105  41  Galena  v.  Amy,  5  Wall.  705. 

U.  S.  237  ;  Louisiana  v.  Jumel,  107  U.  S.  M  Wolff  v.  New  Orleans,  103  U.  S.  358; 

711,  727.  Von  Hoffman  v.  Quincy,  4  Wall.  635. 

38  Smith  v.  Jackson,  1  Paine,  453 ;  The  i3  Meriwether  v.  Garrett,  102  U.  S. 
New  England,  3  Sumner,  495 ;  The  En-  472 ;  Barkley  v.  Levee  Commissioners, 
terprise,  3  Wall.  Jr.  58;  Ex  parte  Jesse  93  U.  S.  258.  But  see  U.  S.  v.  Port  of 
Hoyt,  13  Pet.  279.  Mobile,  12  Fed.  R.  768. 


§  364]  PRACTICE   ON   APPLICATION  FOR  MANDAMUS.  537 

A  mandamus  to  compel  the  levy  of  a  tax  cannot  be  issued  until 
after  a  judgment  has  been  obtained.44 

A  Slate  court  cannot  issue  a  mandamus  against  an  officer  of 
the  United  States  to  compel  the  performance  of  a  duty  of  his 
Federal  office.45  The  only  court  which  has  any  original  juris- 
diction to  issue  such  a  writ  against  an  officer  of  the  United 
States,  in  the  absence  of  special  statute,  and  where  neither  a 
State,  nor  an  ambassador  or  other  public  minister,  nor  a  consul 
or  vice-consul  is  a  party,  is  the  Supreme  Court  of  the  District  of 
Columbia.46 

§  364.  Practice  on  Application  for  Mandamus.  —  In  the  Supreme 
Court  of  the  United  States,  the  usual  practice  on  an  application 
for  a  mandamus  is  to  issue  a  rule  addressed  to  the  judge  or 
judges  of  the  lower  court  calling  on  him  to  show  cause  why  the 
writ  should  not  issue  against  him.1  The  rule  may  also  be  ad- 
dressed to  the  lower  court  itself.2  The  rule  is  only  issued  upon 
a  petition  verified  by  affidavit,  showing  an  apparent  right  to 
the  writ.3  The  party  at  whose  relation  the  writ  is  issued,  must 
have  an  interest  in  the  relief  sought.4  He  is  not  obliged  to  ob- 
tain the  intervention  of  the  Attorney-General  or  a  district  attor- 
ney.5 It  is  the  safer  practice  to  move  ex  parte  for  leave  to  file 
the  petition.6  The  return  cannot  be  amended  on  the  motion  of 
a  person  to  whom  the  writ  is  not  addressed.7 

It  has  been  held  that,  in  the  Circuit  Courts  of  the  United 
States,  the  State  practice  should  not  be  followed,  but  that  the 
practice  remains  substantially  as  at  common  law.8  It  is,  how- 
ever, safer  to  also  comply  with  the  regulations  of  the  State 
practice.9  When  mandamus  is  sought  to  compel  the  payment 
of  a  judgment  against  a  municipal  corporation,  performance 
must   be   first   made    of   all    conditions   precedent   required   by 

«  Rosenbaum  v.  Bauer,  120  U.  S.  450,  4  Ex  parte  Fleming,  2  Wall.  759. 

and  cases  cited.  5  U.  P.  R.   R.  Co.  v.   Hall,  91  U.  S. 

•"  MeClung  v.  Silliman,  0  Wheat.  598.  43;   8.  c.  as  Hall  v.  Union  P.  R.  R.  Co., 

«  Kendall  v.  U.  S.,  12  Pet.  524;  U.  S.  3  Dill.  515;  U.  S.  v.  U.  P.  R.  R.  Co.,  91 

v.  Schurz,  102  U.  S.  378.  U.  S.  72. 

§   364.  i  Postmaster-General  v.  Trigg,  6  State  of  Georgia  v.  Grant,  6  Wall. 

11  Pet.  173;  Ex  parte  Poultney  v.  City  of  241;   Farmers'  Loan  &  Trust  Co.  lVti- 

La  Fayette,  12  Pet.  472;  Ex  parte  Schol-  tioner,  129  U.  S.  200. 

lenberger,  96  U.  S.  369.  7  Ex  parte  Harmon,  131  U.  S.  Appen- 

2  Hollon  Parker,  Pet'r,  131  U.  S.  221.  dix  lxvii. 

»  Poultney  v.  La  Fayette,  12  Pet.  472  ;  8  U.  S.  v.  U.  P.  R.  R.  Co.,  2  Dill.  527. 

Ex  parte  Taylor,  14  How.  3  ;  Postmaster-  9  Wisdom  v.  Memphis,  2  Flippin,  285. 
General  v.  Trigg,  11  Pet.  173. 


538  PRACTICE   AT  COMMON   LAW.  [CHAP.  XXVIII. 

State  statutes,  such  as  the  issue  of  an  execution  and  its  re- 
turn unsatisfied,10  and  service  of  the  judgment  upon  such  offi- 
cers as  the  State  statute  requires.11  It  seems  that  a  formal 
demand  for  pa}^ment  of  the  judgment  is,  unless  when  the  stat- 
utes of  the  State  require  it,  not  a  condition  precedent  to  the 
issue  of  the  writ.12  The  application  for  a  mandamus  should  be 
by  a  verified  petition,  which  may  be  also  termed  an  information 
or  complaint.13  "  If  a  prima  facie  case  is  presented  warranting 
the  relief  prayed,  the  alternative  writ  issues  commanding  the 
respondent  forthwith  to  do  the  act  required,  or  to  show  cause 
why  it  should  not  be  done.  After  the  granting  of  the  writ  three 
courses  are  open  to  the  respondent :  first,  he  may  do  the  thing 
required;  second,  he  may  in  most  of  the  States  demur;  and 
third,  he  may  make  return."  u  By  the  common  law,  the  return 
was  not  traversable.15  By  the  statute  9  Anne,  ch.  20,  a  traverse 
was  allowed  to  the  return  to  a  writ  of  mandamus  in  proceedings 
against  persons  claiming  to  hold  public  offices  instituted  by  any 
persons  to  obtain  admission  or  restoration  to  office  or  to  the  fran- 
chises of  being  burgesses  or  freemen.  A  peremptory  writ  of  man- 
damus will  rarely  if  ever  be  issued  without  notice.16  The  writ 
and  other  proceedings  upon  an  application  for  a  mandamus  to 
compel  the  levy  of  a  tax  under  a  judgment  against  a  public  cor- 
poration should  ordinarily  be  addressed  by  name  to  the  officers 
whose  duty  it  is  to  act,  and  also  describe  them  in  their  official 
capacity.17  A  mandamus  is  sufficient  when  merely  addressed  to 
a  public  officer  by  his  official  title  without  naming  him,18  although 
the  corporation  has  another  title  under  which  its  charter  gives  it 
power  to  be  sued.19  The  writ  may  also  be  addressed  to  the  cor- 
poration itself,  as  in  the  case  of  a  county.20    When  a  State  statute 

10  Riggs  v.  Johnson  County,  6  Wall.        u  High   on  Extraordinary   Remedies, 
160  ;  Weber  v.  Lee  County,  6  Wall.  210;     §  459. 

Lansing  v.  County  Treasurer,  1  Dill.  522  ;  15  Enfield  v.  Hall,  1  Lev.  Part  II.  238  ; 
Laird  v.  Mayor  of  De  Soto,  25  Fed.  R.  76.     Lunt  v.  Davison,  104  Mass.  498  ;  High  on 

11  Moran  v.  City  of  Elizabeth,  9  Fed.  R.     Extraordinary  Remedies,  §  457. 

72.  16  Fairbanks  v.  Amoskeag  Nat.  Bank, 

i2  U.  S.  v.  Elizabeth,  9  Reporter,  232;  30  Fed.  R.  602. 

U.  S.  v.  Auditors  of  Brooklyn,  8  Fed.  R.  17  Thompson  v.  U.  S.,  103  U.  S.  480, 

473 ;  U.  S.   v.  City  of  New  Orleans,  17  484 ;  The  Mayor  v.  Lord,  9  Wall.  409. 

Fed.  R.  483.  18  Thompson  v.  U.  S.,  103  U.  S.  480 ; 

13  Poultney  v.  City  of  Lafayette,  12  The  Mayor  v.  Lord,  9  Wall.  409. 

Pet.  472 ;  U.  S.  v.  Union  P.  R.  R.  Co.,  19  The  Mayor  v.  Lord,  9  Wall.  409. 

Dill.  527.      See  High  on  Extraordinary  20  Commissioners  v.  Sellew,  99   U.   S. 

Remedies,  Part  I.,  ch.  viii.  624. 


§  364]  WRITS   OF   CERTIORARI.  539 

provides  that  service  of  process  against  a  public  board  may  be 
made  upon  its  clerk,  service  of  the  writ  upon  that  clerk  will  be 
sufficient  to  justify  punishment  of  the  individual  members  of  the 
board  for  contempt  if  they  disobey.21  Amendments  of  the  pro- 
ceedings including  the  return  may  be  allowed.22  The  writ  of 
mandamus  may  direct  the  performance  of  a  series  of  acts  by 
different  persons.23  It  seems  that  certiorari  and  mandamus  can- 
not be  joined  in  one  writ.24 

When  the  duty  sought  to  be  enforced  is  one  neglected  by  a 
public  corporation,25  and  not  the  purely  personal  default  of  a 
public  officer,26  the  death,  resignation,  or  expiration  of  the  term 
of  office,  of  the  officer  against  whom  the  proceedings  are  directed 
will  not  abate  them,  and  the  writ  may  be  issued  or  enforced 
against  his  successor.27 

It  is  no  defence  to  an  application  for  a  mandamus  to  compel 
the  levy  of  a  tax  that,  since  the  suit  in  which  was  entered  the 
judgment  sought  to  be  enforced,  a  State  court  has  enjoined  the 
levy.28  Disobedience  to  the  writ  is  punished  by  attachment  for 
contempt.29  Directions  in  the  writ  for  the  performance  of  acts 
not  authorized  by  law  are  void,30  and  disobedience  thereto  is  con- 
sequently not  punishable.31  Upon  appeal  from  the  order  grant- 
ing a  mandamus  to  enforce  a  judgment,  no  question  adjudicated 
in  that  judgment  can  be  questioned,32  unless  "  where  application 
is  made  to  collect  judgments  by  process  not  contained  in  them- 
selves, and  requiring,  to  be  sustained,  reference  to  the  alleged 
cause  of  action  upon  which  they  are  founded ; "  ffl  but  it  is  com- 
petent to  show  that  the  judgment  is  void.34 

21  Commissioners  v.  Sellew,  99  U.  S.  Thompson  v.  U.  S.,  103  U.  S.  480,  484, 
624.     But  see  U.  S.  v.  Labette  County,  7     485. 

Fed.  R.  318.  *27  Secretary  v.  McGarrahan,  9  Wall. 

22  Supervisors  r.  Durant,  9  Wall.  736  ;  298;    U.  S.  v.  Boutwell,   17  Wall.  604; 
United    States    v.    Union    Pacific    Rail-  Thompson  v.  U.  S.,  103  U.  S.  480,  48 1, 
road    Company,   4    Dill.    479;    8.    0.    as  28  Riggs  v.  Johnson  County,  6  Wall. 
Union  Pacific  Railroad  Company  v.  Hall,  166. 

91  U.  S.  343.  29  Commissioners   v.   Sellew,  99  U.   S. 

23  Labette  County  Comm'rs   v.  U.  S.,     624;  U.  S.  v.  Lee  County,  2  Biss.  77. 
112  U.  S.  217.  80  U.    S.   v.    Supervisors    of    Labette 

'-»  Fairbanks  v.  Amoskeag  Nat.  Bank,  County,  7  Fed.  R.  318. 
30  Fed.  R.  602.  31  U.    S.    v.    Supervisors    of    Labette 

25  Commissioners  v.  Sellew,  99  U.  S.  County,  7  Fed.  R.  318. 
024  ;  Thompson  v.  U.  S.,  103  U.  S.  480,         3-  Harshman  v.  Knox  County,  122  U.  S. 

485  ;  Hollen  Parker,  Petitioner,  131  U.  S.  306. 
221.  33  Brownsville  v.  Loague,    129   U.    S. 

29  Secretary   v.  McGarrahan,  9  Wall.  493,  505. 
298 ;  U.  S.  v.  Boutwell,  17   Wall.  604 ;        **  Moore  v.  Edgefield,  32  Fed.  R.  498. 


540  PRACTICE    AT   COMMON   LAW.  [CHAP.  XXVIII. 

§  365.  Writs  of  Certiorari.  —  The  writ  of  certiorari  is  a  writ 
issued  from  a  superior  to  an  inferior  court,  ordering  the  latter  to 
certify  to  the  former  certain  proceedings  before  it.1  At  common 
law,  the  writ  was  issued  for  two  purposes :  as  an  appellate  pro- 
ceeding for  the  re-examination  of  some  action  of  an  inferior  tribu- 
nal ;  and  as  auxiliary  process  to  enable  a  court  to  obtain  further 
information  in  respect  to  some  matter  already  before  it  for  adjudi- 
cation.2 The  writ  can  be  issued  from  a  Federal  court  onty  for 
the  latter  purpose.3  The  Supreme  Court  has  no  original  juris- 
diction to  issue  a  writ  of  certiorari  to  examine  the  proceedings 
of  a  military  commission.4  A  Circuit  Court  of  the  United  States 
cannot  thus  bring  before  it  the  proceedings  before  a  commssioner 
which  it  is  not  authorized  to  correct.5  A  Circuit  Court  cannot 
by  certiorari  remove  a  cause  from  a  District  Court  of  the  United 
States  before  final  judgment ;  but  by  entering  his  appearance  and 
pleading  in  the  Circuit  Court  without  objection,  a  party  waives 
his  right  to  object  subsequently  to  such  a  proceeding.6  Any  court 
of  the  United  States  may  issue  a  writ  of  certiorari  as  ancillary  to  a 
writ  of  habeas  corpus?  If  the  record  sent  up  on  appeal  pr  writ  of 
error  is  incomplete,  it  may  be  corrected  by  certiorari?  Proceed- 
ings that  have  taken  place  since  the  appeal  or  writ  of  error  can- 
not be  thus  removed.9  An  omission  to  make  a  finding  cannot  be 
thus  corrected.10  The  Supreme  Court  may  b}'  order  require  the 
Court  of  Claims  to  find  a  specific  fact.11  An  error  in  a  bill  of  ex- 
ceptions cannot  be  thus  corrected;12  although  the  judge  who  set- 
tled the  same  may  himself  do  so.13  It  seems  that  certiorari  and 
mandamus  cannot  be  joined  in  one  writ.14  The  return  to  the  writ 
of  certiorari  should  be  by  the  clerk  under  his  hand  and  the  seal  of 
the  court.15     The  return  need  not  be  signed  by  the  judge.16 

§  365.  1  U.  S.  v.  Young,  94  U.  S.  258,  259.  Rio  Grande,  19  Wall.  178 ;  Field  v.  Mil- 
See  Harris  v.  Barber,  129  U.  S.  366,  369.  ton,  3  Cranch,  514. 

2  U.  S.  v.  Young,  94  U.  S.  258,  259.  9  U.  S.  v.  Young,  94  U.  S.  258;  U.  S. 

3  U.  S.  R.  S.  §  716 ;  U.  S.  v.  Young,  v.  Adams,  9  Wall.  661. 

94  U.  S.  258,  260 ;  Ex  parte  Van  Orden,  10  U.  S.  v.  Adams,  9  Wall.  661. 

3  Blatchf.  166 ;   In  re  Martin,  5  Blatchf.  "  TJ.  S.  v.  Adams,  9  Wall.  661. 

303;  Fowler  v.  Lindsey,  3  Dall.  411.  12  Stimpson  v.  Westchester  R.  R    Co., 

4  Ex  parte  Vallandigham,  1  Wall.  243.  3  How.  553.      But  see  Morgan  v.  Curte- 
6  Ex  parte  Van  Orden,  3  Blatchf.  166.  nius,  19  How.  8. 

6  Patterson  v.  U.  S.,  2  Wheat.  221.  13  Stimpson  v.  Westchester  R.  R.  Co., 

7  Ex  parte   Burford,  3  Cranch,  448;     3  How.  553. 

Ex  parte  Bollman,  4  Cranch,  75;  In  re  u  Fairbanks  v.  Amoskeag  Nat.  Bank, 

Martin,  5  Blatchf.  303 ;  Ex  parte  Stupp,  30  Fed.  R.  602. 

12  Blatchf.  501.  15  Fenemore  ;-.  U.  S.,3  Dall.  360,  all  note. 

8  TJ.  S.  v.  Gomez,  1  Wall.  690 ;  The  16  Stewart  v.  Inglise,  9  Wheat.  526. 


§  366]  WRITS   OF    HABEAS   CORPUS   IN    GENERAL.  541 

§  366.  Writs  of  Habeas  Corpus  in  General.  —  The  writ  of  habeas 
corpus  is  a  high  prerogative  writ  known  to  the  common  law,  di- 
recting the  production  of  a  prisoner  before  a  court  or  magistrate, 
the  great  object  of  which  is  the  liberation  of  those  who  may  be 
imprisoned  without  sufficient  cause.1  It  is  then  termed  a  writ 
of  habeas  corpus  ad  subjiciendum.2  There  were  also  by  the 
common  law  four  other  writs  of  habeas  corpus :  the  habeas  corpus 
ad  respondendum,  ad  satisfaciendum,  and  ad  faciendum  et  recipi- 
endum, which  removed  a  prisoner  for  debt  from  an  inferior  to  a 
superior  court  for  further  proceedings  in  the  same  or  a  subse- 
quent action;3  and  the  habeas  corpus  ad  prosequendum,  testifican- 
dum, deliberandum,  which  removed  a  prisoner  for  debt  or  crime 
in  order  to  prosecute  or  testify  in  another  court.4  The  habeas 
corpus  cum  causa  is  used  in  the  removal  of  criminal  proceedings 
from  the  State  courts  to  the  Circuit  Courts  of  the  United  States.6 

The  Supreme  Court,  the  Circuit  Courts  and  the  District 
Courts  of  the  United  States  have  power  to  issue  the  writ  of 
habeas  corpus?  Except  in  cases  affecting  ambassadors,  other 
public  ministers,  or  consuls,  the  Supreme  Court  can  only  issue 
the  writ  of  habeas  corpus  for  a  review  of  the  judicial  decision 
of  some  inferior  officer  or  court.7  Consequently,  the  Supreme 
Court  cannot  issue  the  writ  to  inquire  into  the  legality  of  an 
arrest  by  a  municipal  police  officer  under  a  warrant  issued  by 
a  State  or  municipal  police  judge.8 

Any  justice  or  judge  of  any  of  those  courts  has  power  to  issue 
a  writ  of  habeas  corpus  for  the  purpose  of  an  inquiry  into  the 
cause  of  a  restraint  of  liberty  within  his  jurisdiction.9  A.  justice 
of  the  Supreme  Court  may  grant  the  writ  and  hear  argument 
on  the  return  in  any  part  of  the  United  States.10  No  Federal 
court  or  judge  has  power  to  discharge  by  a  writ  of  habeas  corpus 
a  prisoner  in  jail,  unless  such  prisoner  is  in  custody  under  or  by 
color  of  the  authority  of  the  United  States ;  or  is  committed  for 
trial  before  some  court  of  the  United  States;  or  is  in  custody 
for  an  act  done  or  omitted  in  pursuance  of  a  law  of  the  United 

§  366.    i  Ex  parte  Watkins,  3  Pet.  193,  6  U.  S.  R.  S.  §§  642,  613. 

202.  «  U.  S.  R.  S.  §  751. 

-  3  Blackstone's  Commentaries,  131.  7  Ex  parte  Hung  Hang,  108  U.  S.  552; 

8  3  Bl.  Com.  129, 130;  Ex  parte  Bollman  Ex  parte  Barry,  2  I  low.  66. 

and  Ex  parte.  Swartwout,  3  Crancli,  75, 97.  8  Ex  parte  Hung  Hang,  108  U.  S.  552. 

4  3  Bl.  Com.  130  ;   Ex  parte  Bollman  9  U.  S.  R.  S.  §  762. 

and  Ex  parte  Swartwout,  3  Cranch,  75,  97.  10  Ex  parte  Clarke,  100  U.  S.  399,  101. 


542  PRACTICE   AT   COMMON   LAW.  [CHAP.  XXVIII. 

States,  or  of  an  order,  process,  or  decree  of  a  court  or  judge 
thereof;  or  is  in  custody,  in  violation  of  the  Constitution  or  a 
law  or  treaty  of  the  United  States  ;  or,  being  a  revenue  officer 
of  the  United  States,  is  in  custody  on  account  of  any  act  done 
or  omitted  under  color  of  his  office  or  under  color  of  any  revenue 
law  ;  or,  being  a  subject  or  citizen  of  a  foreign  state  and  domi- 
ciled therein,  is  in  custody  for  an  act  done  or  omitted  under  any 
alleged  right,  title,  authority,  privilege,  protection,  or  exemption 
claimed  under  the  commission,  or  order,  or  sanction  of  any  for- 
eign state  or  under  color  thereof,  the  validity  and  effect  of  which 
depend  upon  the  law  of  nations  ;  or  unless  the  writ  is  necessary 
to  bring  the  prisoner  into  court  to  testify.11 

The  writ  of  habeas  corpus  ad  subjiciendum  cannot  be  issued 
in  favor  of  a  person  unless  he  is  actually  restrained  of  his  liberty, 
or  is  threatened  with  such  restraint  by  a  person  with  the  present 
means  of  enforcing  it.12  Merely  moral  duress  is  insufficient. 
Thus,  when  the  party  seeking  the  writ  was  a  naval  officer  in 
Washington,  and  the  basis  of  his  application  was  a  letter  from 
the  Secretary  of  the  Navy  enclosing  charges  against  him,  together 
with  a  notice  of  the  session  of  a  court-martial  to  consider  them, 
and  concluding  :  "  You  are  hereb}7  placed  under  arrest,  and  you 
will  confine  yourself  to  the  limits  of  Washington  ;  "  it  was  held 
that  the  petitioner  was  not  under  such  restraint  as  to  warrant 
the  issue  of  the  writ.13  The  validity  of  his  conviction  of  crime 
cannot  be  thus  tested  by  a  person  who  has  been  pardoned  and  is 
not  restrained  of  his  liberty,  although  he  has  refused  to  accept 
such  pardon.14 

The  writ  of  habeas  corpus  cannot  be  used  to  correct  errors 
and  irregularities,  however  flagrant,  committed  within  the  sphere 
of  the  authority  of  the  court.15  But  a  party  imprisoned  under 
an  order  made  by  a  court  of  the  United  States  where  it  does  not 
possess  jurisdiction  of  either  the  person  or  the  subject-matter, 
can  review  that  order  by  such  a  writ.10  It  has  been  said  that 
"  if   a  judgment    or   any  part    thereof  is  void,  either   because 

11  U.  S.  R.  S.  §§  753,  641,  643.    See  also  Parks,  93  TJ.  S.  18 ;  Ex  parte  Curtis,  106 

18  St.  at  L.  p.  157,  ch.  130,  §  8 ;  1  Supp.  U.  S.  371 ;  Ex  parte  Bigelow,  113  U.  S.  328. 

U.  S.  It.  S.  p.  165.  1B  Ex  parte  Lange,  18  Wall.  163;  Ex 

i-  Wales  r.  Whitney,  1 14  U.S.  564,  572.  parte  Siebold,   100  U.   S.  371;  Ex  parte 

13  Wales  r.  Whitney,  114  U.  S.  564.  Rowland,    104   TJ.   S.  604;    In  re  Ayers, 

«  Be  Callicot,  8  Blatchf.  89.  123  U.   S.  443,  485;  In  re  Sawyer,  124 

!S  Ex  parte  Terry,  128  U.  S.  289,  304 ;  TJ.  S.  200,  221 ;  Ex  parte  Fisk,  113  U.  S. 

Ex  parte  Siebold,  100  U.  S.  371 ;  Ex  parte  813  ;  Ex  parte  Wilson,  114  U.  S.  417. 


§  366]  WRITS   OF   HABEAS   COEPUS   IN   GENERAL.  543 

the  court  that  renders  it  is  not  competent  to  do  so  for  want 
of  jurisdiction,  or  because  it  is  rendered  under  a  law  clearly 
unconstitutional,  or  because  it  is  senseless,  and  without  mean- 
ing, and  cannot  be  corrected  or  for  any  other  cause  then  a 
party  imprisoned  by  virtue  of  such  void  judgment  may  be  dis- 
charged on  habeas  corpus:' 17  After  judgment  of  conviction,  a 
prisoner  cannot  be  released  by  a  writ  of  habeas  corpus  upon  the 
ground  that  the  facts  charged  in  the  indictment  do  not  constitute 
a  crime  within  the  meaning  of  the  statute;18  nor  because  an  im- 
proper person  sat  on  the  grand  jury  which  indicted  him  ; 19  nor 
for  errors  committed  in  the  course  of  his  trial, — even,  it  has 
been  held,  if  these  errors  were  infractions  of  the  Constitution, 
such  as  a  refusal  to  sustain  a  plea  of  a  former  conviction  for  the 
same  cause,20  provided  the  error  does  not  clearly  appear  upon  the 
record ; 21  nor  because  he  was  refused  compulsory  process  for  the 
attendance  of  witnesses  on  his  behalf.22  The  rule  that,  unless  the 
contrary  appears  on  the  record,  a  cause  is  deemed  to  be  with- 
out the  jurisdiction  of  a  Circuit  or  District  Court  of  the  United 
States,  has  no  application  where  the  judgment  of  such  a  court 
is  attacked  collaterally  by  habeas  corpus*®  or  otherwise.24 

A  prisoner  may  be  discharged  by  a  writ  of  habeas  corpus,  when 
he  has  been  convicted  in  a  court  of  the  United  States  of  a  cap- 
ital or  infamous  crime  without  having  any  indictment  found 
against  him.25  A  crime  is  considered  infamous  when  punish- 
able by  imprisonment  in  a  State  prison  or  penitentiary  with  or 
without  hard  labor.26  A  prisoner  may  be  discharged  by  habeas 
corpus  when  his  conviction  was  in  a  court  of  the  United  States, 
under  an  indictment,  the  body  of  which  was  amended  by  the 
court;27  or  under  an  indictment  based  upon  a  city  ordinance,28 
or  a  statute,  State  or  Federal,  which  is  repugnant  to  the  Federal 
Constitution;29  or  under  a  judgment  imposing  a  second  penalty 

17  Bradley,  J.,  in  U.  S.  v.  Patterson,  Cranch,   173,   185;    McCormiek   v.   Sul- 

29  Fed.  R.  775,  778.  livant,   10  Wheat.   102,   199;    Galpin   v. 

is  Ex  parte  Parks,  93  U.  S.  18  ;  Ex  parte  Page,  18  Wall.  350,  305. 

Watkins,  3  Pet.  193,  203  ;  Ex  parte  Yar-  2&  Ex  parte  Wilson,  114  U.  S.  417. 

brough,  110  U.  S.  651,  654.  2S  Ex  parte   Wilson,   114   U.   S.   417; 

19  Ex  parte  Harding,  120  U.  S.  782.  Mackin  i».  U.  S.,  117  U.  S.  348. 

2"  Ex  parte   Bigelow,   113   U.   S.    328.  27  Ex  parte  Bain,  121  U.  S.  1. 

But  see  Nielsen,  Petitioner,  131  U.  S.  176.  28  The    Stockton    Laundry    Case,  20 

21  Nielsen,  Petitioner,  131  U.  S.  170.  Fed.  R.  611. 

22  Ex  parte  Harding,  120  U.  S.  782.  29  Ex  parte  Sieliold,  100  U.  S.  371  ;   I' r 

23  Cuddy,  Pet'r,  131  U.  S.  280,  285.  parte  Clarke.    100    U.   S.  399 ;  Ex  parte 
2*  Kempe's     Lessee     v.     Kennedy,    5  Curtis,  100  U.  S.  371. 


544 


PRACTICE   AT  COMMON   LAW.  [CHAP.  XXVIII. 


or  different  penalty  from  that  previously  imposed  upon  the  same 
party  for  the  same  offence,  although  the  former  judgment  was 
entered  at  the  same  term  as  the  latter;30  or  under  a  judgment 
entered  upon  a  conviction  under  several  indictments,  and  impos- 
ing more  than  one  punishment  for  a  continuous  offence  ; S1  or 
for  contempt  of  a  court  of  the  United  States  by  disobedience  to 
an  order  beyond  the  power  of  such  court ;  ®  or  for  contempt  of  a 
court  of  the  United  States  for  an  act  not  committed  in  the  pres- 
ence of  the  court,  when  the  prisoner  has  been  given  no  hearing  ;  ^ 
or,  before  conviction,  when  held  under  a  warrant  issued  by  a 
United  States  judge  or  commissioner,  under  a  complaint  which 
does  not  state  an  offence  under  a  statute  of  the  United  States,24 
or  one  of  which  such  judge  or  commissioner  has  jurisdiction  ; 35  or, 
in  case  of  extradition  proceedings,  under  a  complaint  which  does 
not  state  an  extraditable  offence;36  but  in  neither  of  the  last 
two  cases  will  the  court  on  habeas  corpus  review  the  decision  of 
a  disputed  question  of  fact.37  Whether  by  writ  of  habeas  corpus 
any  of  the  Federal  courts  or  judges  will  take  cognizance  of  a 
controversy  between  parties  who  are  citizens  of  different  States, 
as  to  the  right  to  the  custody  of  a  child,  is,  under  the  authorities, 
a  doubtful  question.38  A  habeas  corpus  proceeding  cannot  be 
removed  from  a  State  to  a  Federal  court.39  A  State  court  has 
not  the  power  to  grant  a  writ  of  habeas  corpus  to  a  person 
held  under  color  of  authority  from  the  United  States.40  When 
such  a  writ  is  issued  by  a  State  court,  the  person  to  whom  it  is 
directed  should  make  a  return  stating  that  he  holds  the  prisoner 
under  the  authority  of  the  United  States,  but  otherwise  disregard 


v  Ex  parte  Lange.  18  Wall.  163  ;  Neil- 
sen,  Petitioner,  131  U.  S.  176. 

31  In  re  Snow,  120  U.  S.  274. 

82  Ex  parte  Rowland,  104  U.  S.  604 ; 
Ex  parte  Fisk,  113  U.  S.  713;  Re  Avers, 
123  U.  S.  443;  In  re  Sawyer,  124  U.  S. 
200 ;  Cuddy,  Petitioner,  131  U.  S.  280. 

33  Ex  parte  Terry,  128  U.  S.  289. 

34  Ex  parte  Bollman  and  Ex  parte 
Swartwout,  4  Cranch,  75 ;  Ex  parte 
Watkins,  3  Pet.  201;  Ex  parte  Jenkins, 
2  Wall.  C.  C.  521,  528;  In  re  Martin, 
5  Blatchf.  303. 

35  /„  rP  Ferez,  7  Blatchf.  34;  In  re 
Cross.  20  Fed.  R.  824 ;  U.  S.  v.  Rogers, 
23  Fed.  R.  658;  In  re  Kelly,  25  Fed.  R. 
268. 


36  In  re  Ferez,  7  Blatchf.  34;  In  re 
Kelly,  25  Fed.  R.  268 ;  Ex  parte  Lane, 
6  Fed.  R.  34. 

37  Benson  v.  McMahon,  127  U.  S.  457  ; 
In  re  Fowler,  4  Fed.  R.  303 ;  In  re  Byron, 
18  Fed.  R.  722  ;  In  re  Roberts,  24  Fed.  R. 

132. 

38  Bennett  v.  Bennett,  Deady,  299, 
holds  that  they  can.  See  also  U.  S.  v. 
Green,  3  Mason,  482  ;  U.  S.  ex  rel.  Wheeler 
v.  Williamson,  4  Am.  L.  Reg.  5.  Contra, 
Ex  parte  Evert,  1  Bond,  197 ;  Ex  parte 
Barry,  cited  in  argument  of  counsel  in 
Barrv  v.  Mercein,  5  How.  103,  104. 

89  Kurtz  o.  Moffitt.  115  U.  S  487. 
*o  Ableman   v.   Booth,   21    How.   506; 
Tarble's  Case,  13  Wall.  397. 


§  367.]    PEACTICE  ON  APPLICATION  FOR  HABEAS  CORPUS.      545 

the  writ.41  A  State  court  may  by  a  writ  of  habeas  corpus  examine 
the  legality  of  the  detention  of  a  prisoner  by  a  person  appointed 
by  the  governor  of  a  State  in  extradition  proceedings.42 

§  367.  Practice  on  Application  for  Habeas  Corpus.  —  The  appli- 
cation for  a  writ  of  habeas  corpus  must  be  made  b}ra  written  com- 
plaint addressed  to  the  court  or  judge  from  whom  the  writ  is 
sought,  and  sworn  to  by  the  complainant,  setting  forth  the 
facts  concerning  the  detention  of  the  party  restrained,  in  whose 
custody  he  is  detained,  and  by  virtue  of  what  claim  or  authority, 
if  known.1  It  seems  that  it  is  not  necessary  that  the  application 
be  made  by  the  prisoner  or  by  some  one  whom  he  has  authorized 
to  represent  him,  but  that  the  writ  may  be  granted  at  the  request 
of  a  stranger  who  has  no  legal  interest  in  the  matter ; 2  but  it 
is  the  safer  practice  for  the  complaint  in  such  a  case  to  show 
some  good  reason  for  not  obtaining  the  consent  of  the  party  de- 
tained. An  early  case  holds  that  when  the  prisoner  has  been 
committed  to  jail  by  a  public  officer,  the  complaint  should  be 
accompanied  by  a  copy  of  the  commitment,  or  an  affidavit  that 
the  jailer  has  refused  a  copy.3  The  petition  must  show  the  juris- 
diction of  the  court  or  judge  to  grant  the  writ.4 

When  the  proceedings  of  an  inferior  tribunal  are  reviewed  by 
a  writ  of  habeas  corpus,  a  writ  of  certiorari  issues  with  it  and 
should  be  asked  in  the  complaint.5 

The  court  or  judge  to  whom  such  an  application  is  made  should 
forthwith  grant  a  writ  of  habeas  corpus,  unless  it  appears  from  the 
petition  that  the  party  is  not  entitled  thereto.6  A  decision  under 
one  writ  refusing  to  discharge  the  prisoner  has  been  held  to  be 
no  bar  to  the  issue  of  any  number  of  subsequent  writs.7  Instead 
of  issuing  the  writ  in  the  first  instance  the  court  may  enter  a  rule 
to  show  cause  why  it  should  not  issue.8  The  Supreme  Court 
will  ordinarily  refuse  to  issue  the  writ  in  a  case  of  which  a  Cir- 

41  Ableman  v.  Booth,  21  How.  506.  5  Ex  parte  Burford,    3   Cranch,   448 ; 

42  Robb  v.   Connolly,  111  U.  S,  624;     Ex  parte  Bollman,  4  Cranch,  76  ;  Er  parte 
Roberts  v.  Reilly,  116  U.  S.  80.  94.  Martin,  5  Blatchf.  30:; ;    /,»  re  btupp,  12 

§  367.   i  U.  S.  R.  S.  §  754.  Blatchf.  501.     See  §  865. 

2  Ex  parte  Des  Rochers,  1  McAllister,  "  U.  S.  R.  S.  §  755. 

68;  In  re  Hoyle,  12  Chic.  L.  N.  279;  s.  c.  '  Ex  parte  Kaine,  3  Blatchf.  1.    But  see 

9  Am.  L.  Rec.65;  Re  Ferrens,  3  Ben.  442.  s.  c.  14  How.  103;  Ex  part?  Robinson,  6 

But  see  Re  Poole,  2  McArthur  (D.  C),  583.  McLean,  355 ;  Ex  parte  Cuddy,  40  Fed.  R. 

3  Harrison's  Case,  1  Cranch  C  C.  159 ;  G2. 

U.  S.  v.  Bollman,  1  Cranch  C.C  373.  8  Ex  parte  Milhurn,  9  Pet.  704,  note; 

4  Ex  parte  Milhurn,  9  Pet.  704,  note;     Trial  of  Vallandigham,  45. 
Cuddy,  Petitioner,  131  U.  S.  280. 


546  PRACTICE   AT   COMMON   LAW.  [CHAP.  XXVIII. 

cuit  Court  of  the  United  States  has  jurisdiction,  unless  it  is  in- 
tended to  review  a  decision  of  such  Circuit  Court.9  The  Supreme 
Court10  and  the  iuferior  courts  of  the  United  States  will  ordinarily 
refuse  to  discharge  by  habeas  corpus  a  prisoner  held  under  indict- 
ment by  a  State  court  before  trial  of  the  indictment,  and  may  even 
do  so  after  his  conviction,  if  he  has  still  a  remedy  by  writ  of  error 
or  appeal  in  the  courts  of  such  State.11 

The  writ  when  issued  from  the  court,  like  other  writs  issued 
out  of  the  Federal  courts,  must  bear  the  seal  of  the  court,  be 
signed  by  the  clerk,  and  bear  teste  of  the  presiding  justice  of  the 
Supreme  Court  when  issued  therefrom  or  from  a  Circuit  Court, 
and  when  issued  from  a  District  Court,  of  the  judge  thereof,  or 
when  that  office  is  vacant,  the  clerk  thereof.12  The  writ  must  be 
directed  to  the  person  in  whose  custody  the  prisoner  is  detained.13 
When  the  writ  is  issued  in  the  case  of  an  alien  prisoner  domi- 
ciled in  a  foreign  State  to  which  he  owes  allegiance,  who  is  in 
custody  by  or  under  the  law  of  any  one  of  the  United  States,  or 
process  founded  thereon,  on  account  of  anjr  act  done  or  omitted 
under  any  alleged  right,  title,  authority,  privilege,  protection,  or 
exemption,  claimed  under  the  commission,  or  order,  or  sanction 
of  any  foreign  State,  or  under  color  thereof,  the  validity  and 
effect  of  which  depend  on  the  law  of  nations ;  notice  of  the  said 
proceeding,  to  be  prescribed  by  the  court  or  judge  issuing  the  writ, 
must  be  served  on  the  Attorney-General  or  other  officer  prosecut- 
ing the  pleas  of  said  State;  and  due  proof  of  such  service  must  be 
made  to  the  court  or  judge  before  the  hearing.14  Otherwise,  such 
notice  is  not  necessary,  although  the  prisoner  is  confined  under 
the  judgment  or  order  of  a  State  court  or  magistrate.15 

The  person  to  whom  the  writ  is  directed  must  make  a  due  re- 
turn thereof  within  three  days  thereafter,  unless  the  party  be 
detained  beyond  the  distance  of  twenty  miles  ;  and  if  beyond 
that  distance  and  not  beyond  the  distance  of  a  hundred  miles, 
within  ten  days  ;  and  if  beyond  the  distance  of  a  hundred  miles, 
within  twenty  days.16     The  return  must  be  in  writing,  signed  by 

9  Ex  parte  Mirzan,  110  U.  S.  584 ;  Ex  "  U.  S.  R.  S.  §  755. 

parte   Royall,  117   U.   S.  254;    Wales  v.  M  U.  S.  R.  S.  §  762. 

Whitney,"  114  U.  S.  564.  15  Matter  of  Leary,  10  Ben.  197.     But 

i°  Ex  parte  Royall,  117  U.  S.  254.  see  United    States  v.  Jailer   of    Fayette 

11  Ex  parte  Royall,  117  U.  S.  254.    But  County,  2  Abb.  U.  S.  265. 
see  In  re  Reinitz,*30  Fed.  R.  204.  16  U.  S.  R.  S.  §  756. 

12  U.  S.  R.  S.  §§  911,  912;  Matter  of 
Kaine,  14  How.  103,  119. 


§  367.]        PRACTICE   ON   APPLICATION   FOR   HABEAS   CORPUS.  547 

the  person  to  whom  the  writ  is  directed,17  and  certifying  the  true 
cause  of  the  prisoner's  detention.18  The  person  making  the  re- 
turn must  at  the  same  time  bring  the  body  of  the  prisoner  before 
the  judge  who  granted  the  writ.19  A  failure  to  do  this  or  to 
make  a  return  may  be  punished  by  attachment.20  A  false  re- 
turn may  be  similarly  punished.21  If  the  prisoner  is  no  longer 
under  the  control  of  the  person  to  whom  the  writ  is  addressed,  the 
latter  must  declare,  so  far  as  he  knows,  what  has  become  of  him.22 

Pending  the  hearing  upon  the  return  to  a  writ  of  habeas  cor- 
pus the  prisoner  is  in  the  custody  of  the  court  or  judge  that 
issued  the  writ,  and  may  be  admitted  to  bail  or  remanded  to  the 
same  jail  from  which  he  came,  or  placed  in  the  custody  of  the 
marshal.23  He  cannot,  while  in  such  custody,  be  arrested  on  a 
second  warrant.24  When  the  writ  is  returned,  a  day  must  be  set 
for  the  hearing  of  the  cause  not  exceeding  five  days  after  the 
return,  unless  the  party  petitioning  requests  a  longer  time.25 
When  the  writ  is  granted  by  a  justice  of  the  Supreme  Court  in  a 
case  of  which  that  court  has  jurisdiction,  and  the  proceeding  is  in 
its  nature  appellate,  that  is,  to  review  the  proceedings  of  an  infe- 
rior court,  the  justice  may  postpone  the  hearing  until  a  session  of 
the  whole  court.26  The  applicant  for  the  writ  or  the  party  im- 
prisoned or  restrained  may  deny  under  oath  any  of  the  facts  set 
forth  in  the  return,  or  may  allege  any  other  material  facts.27  The 
court  or  judge  may  allow  the  return  and  all  suggestions  against 
it  to  be  amended  before  or  after  the  same  are  filed.28  The  court 
or  judge,  upon  the  day  set  for  the  hearing,  must  proceed  in  a 
summary  way  to  determine  the  facts,  by  hearing  the  testimony 
and  arguments,  and  thereupon  make  an  order  discharging  the 
prisoner  or  remanding  him  to  the  custody  from  which  he  was 
removed  by  the  writ.29  The  prisoner  must  be  discharged  unless 
the  return  shows  that  his  imprisonment  was  lawful  at  the  time 
of  the  service  of  the  writ.30     A  return  showing  that,  since  the 

17  Seavey  v.  Seymour,  3  Cliff.  439.  «  Matter  of  Kaine,  14  How.  103. 

18  U.  S.  R.  S.  §  757.  24  In  re  Farez,  7  Blatchf.  345. 

19  U.  S.  R.  S.  §  758.  25  U.  S.  R.  S.  §  759. 

20  United  States  v.  Bollman,  1  Cranch  26  Ex  parte  Clarke,  100  U.  S.  399,  403. 
C.  C.  373;    United    States    v.   Green,    3     But  see  Matter  of  Kaine,  14  How.  103. 
Mason,  482.  27  u.  S.  R.  S.  §  7G0. 

21  United  States   v.   Davis,   5    Cranch  28  U.  S.  R.  S.  §  7G0. 
C.  C.  622;   United  States  v.  Williamson,  29  u.  S.  R.  S.  §  761. 

3  Am.  L.  Reg.  729 ;  s.  c.  4  Am.  L.  Reg.  5.        8»  In  re  Boo  Woon,  18  Fed.  R.  898.   But 

22  United  States  v.  Williamson,  4  Am.     see  U.  S.  v.  Patterson,  29  Fed.  R.  775. 
L.  Reg.  5. 


548 


PRACTICE    AT    COMMON    LAW. 


[CHAP.  XXYIII. 


service  of  the  writ,  process,  which  authorizes  his  imprisonment, 
has  been  issued,  is  insufficient.31 

§  368.    Appeals  in  Habeas  Corpus  Proceedings.  —  From  the  final 
decision  of  a  Circuit  Court  of  the  United  States,  upon  an  appli- 
cation  for  a  writ  of  habeas  corpus,  or   upon   such  writ  when 
issued,  an  appeal  may  be  taken  to  the  Supreme  Court,  in  the 
case  of  any  person  alleged  to  be  restrained  of  his  liberty  in  viola- 
tion of  the  Constitution  or  of  any  law  or  treaty  of  the  United 
States ;  and  in  the  case  of  a  prisoner  who,  being  a  subject  or 
citizen  of  a  foreign  state  and  domiciled  therein,  is  committed  or 
confined,  or  in  custody  by  or  under  the  authority  or  law  of  the 
United  States,  or  of  any  State,  or  process  founded  thereon,  for  or 
on   account   of  any   act   done   or   omitted    under    any   alleged 
right,  title,  authority,  privilege,  protection,  or  exemption,  set  up 
or  claimed   under   the    commission,  order,  or  sanction    of  any 
foreign    state    or  sovereignty,    the   validity   and  effect  whereof 
depend  upon  the  law  of  nations,  or  under  color  thereof.1      No 
appeal  lies  from  a  decision  of  a  judge  of  a  Circuit  Court  of  the 
United  States;2  nor  will  the  Supreme  Court  review  a  decision  of 
a  Circuit  Court  in  habeas  corpus  proceedings  upon  a  certificate  of 
division  of  opinion  between  the  judges,  when  no  final  judgment 
has  been  entered.3     From  the  final  decision  of  a  justice  or  judge 
of  the  United  States  inferior  to  the  Circuit  Court,  upon  an  appli- 
cation for  a  writ  of  habeas  corpus  or  upon  such  writ  when  issued, 
an  appeal  may  be  taken  to  the  Circuit  Court  for  the  district  in 
which  the  cause  is  heard,  under  the  same  circumstances  as  would 
authorize  an  appeal  from  a  Circuit  Court  to  the  Supreme  Court.4 
No  new  evidence  can  be  offered  upon  such  appeals,  except  such 
evidence  as  was  offered  and  excluded  in  the  court  below.5    Pend- 
ing an  appeal  from  a  final  decision  declining  to  grant  a  writ  of 
habeas  corpus,  the  custody  of  the  prisoner  must  not  be  disturbed.6 
Pending  an  appeal  from  a  final  decision  discharging  the  writ  after 
it  has  been  issued,  the  prisoner  must  be  remanded  to  the  custody 
from  which  he  was  taken,  unless,  for  good  cause  shown,  he  is 
detained  in  the  custody  of  the  court  or  judge  that  granted  the 


si  In  re  Doo  Woon,  18  Fed.  R.  898. 
But  see  TJ.  S.  v.  Patterson,  29  Fed.  R. 
775. 

§  368.  1  TJ.  S.  R.  S.  §  764,  as  amended 
by  24  St.  at  L.  ch.  353,  p.  457. 

2  Carper  v.  Fitzgerald,  121  U.  S.  87. 


3  Ex  parte  Tom  Ting,  108  TJ.  S.  556 ; 
Ex  parte  Cota,  110  U.  S.  385. 
*  TJ.  S.  R.  S.  §  763. 

5  Seavey  v.  Seymour,  3  Cliff.  439. 

6  Supreme   Court  Rule  34,  117  U.  S 
708;  U.  S.  R.  S.  §  765. 


§  369.]  ATTACHMENT   OF   PROPERTY.  549 

writ,  or  is  enlarged  upon  recognizance,  as  described  in  the  next 
sentence.7  Pending  an  appeal  from  the  final  decision  of  any 
court  or  judge  discharging  a  prisoner  upon  habeas  corpus,  he 
must  be  enlarged  upon  recognizance  for  appearance  to  answer 
the  judgment  of  the  appellate  court,  with  a  surety,  unless  for 
special  reasons  surety  is  not  required.8  Pending  such  proceed- 
ings and  appeal  and  until  final  judgment  therein,  and  after  final 
judgment  of  discharge,  any  proceeding  for  any  matter  so  heard 
and  determined,  or  in  process  of  being  heard  and  determined, 
taken  in  any  State  court  or  by  or  under  the  authority  of  any  State 
against  the  person  whose  body  is  the  subject  of  the  writ,  shall  be 
deemed  null  and  void.9  Other  proceedings  upon  such  an  appeal, 
including  the  time  when  the  transcript  is  to  be  filed  in  the  appellate 
court,  are  regulated  by  the  court  or  judge  hearing  the  cause.10  The 
appeal  may  thus  be  heard  at  a  term  pending  when  it  is  taken.11 

§  369.  Attachment  of  Property.  —  A  Federal  statute  passed 
June  1,  1872,  provides  that  "  in  common-law  causes  in  the  Cir- 
cuit and  District  Courts  the  plaintiff  shall  be  entitled  to  similar 
remedies,  by  attachment  or  other  process,  against  the  property  of 
the  defendant,  which  are  now  provided  by  the  laws  of  the  State 
in  which  such  court  is  held  for  the  courts  thereof;  and  such 
Circuit  or  District  Courts  may,  from  time  to  time,  by  general 
rules,  adopt  such  State  laws  as  may  be  in  force  in  the  States 
where  they  are  held  in  relation  to  attachments  and  other  process, 
provided,  that  similar  preliminary  affidavits  or  proofs,  and  sim- 
ilar security,  as  required  by  such  State  laws,  shall  be  first  furnished 
by  the  party  seeking  such  attachment  or  other  remedy."  :  Most 
of  the  Circuit  and  District  Courts  have  adopted  by  their  rules 
the  State  laws  in  force  within  their  respective  districts.2  These 
rules  and  the  statute  do  not  give  a  Circuit  or  District  Court 
power  thus  to  acquire  jurisdiction  over  a  person  not  a  resident  of 
the  district.3  Neither  a  State  nor  a  Federal  court  can  attach  be- 
fore judgment  the  property  of  a  national  banking  association.4 

7  Supreme  Court  Rule  34,  117  U.  S.  2  See,  for  example,  the  Rules  of  tlie 
708  ;  U.  S.  R.  S.  §  765.                                    U.  S.  C.  C,  S.  D.  N.  Y.,  adopted  October 

8  Supreme  Court   Rule  34,  117  U.  S.     11,  1878,  and  Dec.  29,  1881. 

708  ;  U.  S.  R.  S.  §  765.  3  Sadlier  v.  Fallon,  2  Curt.  579  ;  Nazro 

9  U.  S.  R.  S.  §  766.  v.  Cragin,  3  Dill.  474  ;  Chittenden  v.  Dar- 
10  U.  S.  R.  S.  §  768.  den,  2  Woods,  437  ;  Harland  v.  United 
"  Roberts  v.  Reilly,  116  U.  S.  80.  Lines  Tel.  Co.,40  Fed.  R.  308. 

§  369.   i  U.  S.  R.  S.  §  915;  17  St.  at  L.  "  U.  S.  R.  S.  §  5242  ;  Pacific  National 

ch.  255,  p.  197.  Bank  v.  Mixter,  124  U.  S.  721. 


550  PRACTICE    AT   COMMON   LAW.  [CHAP.  XXVIII. 

§  370.  Arrests.  —  The  Revised  Statutes  regulate  arrests  in  civil 
actions  as  follows :  "  No  person  shall  be  imprisoned  for  debt  in 
auy  State,  on  process  issuing  from  a  court  of  the  United  States, 
where,  by  the  laws  of  such  State,  imprisonment  for  debt  has  been 
or  shall  be  abolished.  And  all  modifications,  conditions,  and 
restrictions  upon  imprisonment  for  debt,  provided  by  the  laws  of 
any  State,  shall  be  applicable  to  the  process  issuing  from  the 
courts  of  the  United  States  to  be  executed  therein  ;  and  the 
same  course  of  proceedings  shall  be  adopted  therein  as  may  be 
adopted  in  the  courts  of  such  State."  *  "  When  any  person  is 
arrested  or  imprisoned  in  any  State,  on  mesne  process  or  execu- 
tion issued  from  any  court  of  the  United  States,  in  any  civil 
action,  he  shall  be  entitled  to  discharge  from  such  arrest  or  im- 
prisonment in  the  same  manner  as  if  he  were  so  arrested  and  im- 
prisoned on  like  process  from  the  courts  of  such  State.  The 
same  oath  may  be  taken,  and  the  same  notice  thereof  shall  be 
required,  as  may  be  provided  by  the  laws  of  such  State,  and  the 
same  course  of  proceedings  shall  be  adopted  as  may  be  adopted 
in  the  courts  thereof.  But  all  such  proceedings  shall  be  had 
before  one  of  the  commissioners  of  the  Circuit  Court  for  the  dis- 
trict where  the  defendant  is  so  held."2  "  Persons  imprisoned  on 
process  issuing  from  any  court  of  the  United  States  in  civil 
actions,  as  well  at  the  suit  of  the  United  States  as  at  the  suit  of 
any  person,  shall  be  entitled  to  the  same  privileges  of  the  yards  of 
the  respective  jails  as  persons  confined  in  like  cases  on  process  from 
the  courts  of  the  respective  States  are  entitled  to,  and  under  the 
like  regulations  and  restrictions."3  The  effect  of  these  provisions 
is  to  make  the  practice  and  proceedings  in  arrests  in  civil  actions 
in  the  Federal,  Circuit,  and  District  Courts  almost  exactly  similar 
to  those  in  the  State  courts  held  in  their  respective  districts.4 

§  371.  Consolidation  at  Law  and  in  Equity.  —  The  Revised 
Statutes  provide  that  when  causes  of  a  like  nature  or  relative 
to  the  same  question  are  pending  before  a  court  of  the  United 
States  or  of  any  Territory,  the  court  may  make  such  orders  and 

§  370.    1  U.  S.  R.  S.  §  990.     See  In  re  Gray  v.  Muiiroe,  1  McLean,  528 ;  Low  v. 

Bergen,  2  Hughes,  513 ;  Low  v.  Durfee,  Durfee,  5  Fed.  R.  25(3 ;    United  States  r. 

5  Fed.  R.  256 ;    Catherwood    v.   Gapete,  Tetlow,  2  Lowell,  159 ;  In   re  Bergen,   2 

2  Curt.  94  ;   Moan   v.  Wilmarth,  3  W.  &  Hughes,  513.     But  see  Duncan  v.  Darst, 

M.  399.  1  How.  301  ;    In  re  Watson  Freeman,  2 

2  U.  S.  R.  S.  §  991.  Curt.  491;    United  States  v.  Knight,  14 

3  U.  S.  R.  S.  §  992.  Pet.  301. 
*  Moan  v.  Wilmarth,  3  W.  &  M.  399 ; 


5  372]  EVIDENCE,   TESTIMONY,   AND   DEPOSITIONS.  551 

rules  concerning  proceedings  therein  as  may  be  conformable  to 
the  usages  of  courts  for  avoiding  unnecessary  costs  or  delay  in 
the  administration  of  justice,  and  may  consolidate  said  causes 
when  it  appears  reasonable  to  do  so.1  This  statute  has  been  held 
to  apply  to  suits  in  equity  as  well  as  at  law.2  Where  a  railway 
company  filed  a  bill  in  a  State  court  asking  that  its  property  be 
placed  in  the  hands  of  a  receiver,  and  the  trustee  of  a  mortgage 
upon  its  property  after  removal  filed  a  cross-bill  in  the  Federal 
court  to  foreclose  the  mortgage,  and  then  began  a  foreclosure 
suit  in  the  State  court,  which  was  afterwards  removed ;  the 
Federal  court  consolidated  all  three  proceedings.3  The  court 
may  order  several  cases  involving  substantially  the  same  evi- 
dence to  be  tried  together,  and  direct  the  jury  to  bring  in  sepa- 
rate verdicts.4  This  may  be  ordered  in  actions  of  ejectment  by 
the  same  plaintiff  claiming  under  the  same  title  against  several 
defendants  ; 5  and  in  two  suits  against  separate  defendants  for 
the  same  injury,  although  one  is  an  action  in  tort  and  the  other 
on  contract.6  In  a  case  where  several  actions  at  common  law, 
brought  in  a  State  court,  and  removed  to  a  Federal  court,  were 
based  upon  insurance  policies  on  the  same  property,  issued  upon 
the  same  application,  at  the  same  time  and  by  the  same  agent, 
containing  a  clause  for  contribution,  the  court  ordered  that  one 
of  the  causes  be  transferred  to  the  equity  docket,  and  the  other 
defendants  be  made  parties  thereto;  that  the  pleadings  in  that 
case  be  reformed  according  to  the  equity  practice ;  and  that 
the  proceedings  in  the  other  causes  be  stayed.7 

§  372.  Evidence,  Testimony,  and  Depositions.  —  The  Revised 
Statutes  provide  that,  except  in  cases  where  depositions  are 
authorized  to  be  taken  and  used,  "the  mode  of  proof  in  the  trial 

§  371.  1  U.  S.  R.  S.  §  921;  United  States         2  Andrews  v.  Spear,  4  Diil.  470  ;  Wa- 

v.  U.  P.  R.  R.  Co.,  98  U.  S.  569 ;  Andrews  bash,  St.  L.  &  P.  Ry.  Co.  v.  Central  Trust 

v.  Spear,  4  Dill.  470;  Bank  of  Alexan-  Co.,  23  Fed.  R.  513. 
dria    v.   Young,    1   Cranch    C.   C.   458;         3  Wabash,    St.  L.   &   P.   Ry.  Co.    v. 

Wolverton  v.  Lacey,  18  Law  Rep.  672;  Central  Trust  Co.,  23  Fed.  R.  513. 
Weide  v.  Insurance  Co.  of  N.  A.,  3  Chic.  4  Keep  v.  I.  &  St.  L.  R.  Co.,  10  Fed.  R. 

L.  N.  353;  Wabash,  St.  L.  &  P.  Ry.  Co.  454. 

v.  Central  Trust  Co.,  23  Fed.  R.  513 ;  Fer-  5  Keep  v.  I.  &.  St.  L.  R.  Co.,  10  Fed.  R. 

rett  i'.  A  twill,  4  N.   Y.  Legal  Observer,  454,  455. 

215;    Holmes  v.  Sheridan,    1    Dill.   351;         «  Keep  t-.  I.  &  St.  L  R.  Co.,  10  Fed.  R. 

Young  v.  Grand  Trunk  Ry..  9  Fed.  R.  454. 

348;  Keep  v.  Indianapolis  &  St.  L.  R.  It.  7  Falls  of  Neuse  Manuf.  Co.  v.  Georgia 

Co.,  10  Fed.  R.  454;  Davis   v.  St.  Louis  Home  Ins.  Co  ,  26  Fed.  R.  1. 

6  S.  F.  Ry.  Co.,  25  Fed.  R.  786. 


552  PRACTICE   AT   COMMON   LAW.  [CHAP.  XXVIII. 

of  actions  at  common  law  shall  be  by  oral  testimony,  and  the  ex- 
amination of  witnesses  in  open  court."  x  The  Circuit  and  District 
Courts  have  no  power  to  enact  rules  regulating  the  taking  of 
testimony.2  The  cases  in  which  depositions  can  be  taken  and 
used,  and  other  rules  upon  this  subject,  are  stated  in  the  previous 
chapter  on  Evidence.3  No  form  of  examination  or  deposition 
unknown  to  the  common  law  and  not  authorized  by  a  Federal 
statute,  even  though,  —  as  the  examination  of  a  party  before  trial, 
for  example,  —  authorized  by  a  statute  of  the  State  where  the 
court  is  held,  will  be  followed  by  a  Federal  court  in  either  an  ac- 
tion at  common  law  or  a  suit  in  equity.4  An  order  of  a  State 
court  directing  such  an  examination  is  avoided  by  the  removal  of 
the  case.5  Whether  an  order  can  be  granted  for  the  examination 
of  a  party,  in  accordance  with  the  State  statute,  to  an  action  at 
common  law,  to  enable  the  opposite  party  to  frame  his  pleading, 
is  unsettled.6  It  has  been  held  in  the  Southern  District  of  New 
York  that  inspection  of  a  document  before  trial  at  common  law 
can  only  be  obtained  by  a  bill  of  discovery,  not  by  an  order,  in 
accordance  with  the  State  practice.7  A  statute  provides  that  on 
the  trial  of  an  action  at  law  the  courts  of  the  United  States  may, 
on  motion  and  due  notice  thereof,  require  the  parties  to  produce 
books  or  writings  in  their  possession  or  power,  which  contain 
evidence  pertinent  to  the  issue,  in  cases  and  under  circumstances 
where  they  might  be  compelled  to  produce  the  same  by  the  ordi- 
nary rules  of  proceeding  in  chancery.8  If  a  plaintiff  fails  to  com- 
ply with  such  an  order,  the  court  may,  on  motion,  give  the  like 
judgment  for  the  defendant  as  in  cases  of  nonsuit;  and  if  a  de- 
fendant fails  to  comply  with  such  order,  the  court  may,  on  motion, 
give  judgment  against  him  by  default.9  It  has  been  held  at 
circuit  that  this  practice  will  be  followed  in  equity.10  The  pen- 
dency of  a  bill  of  discovery  is  not  a  bar  to  such  a  motion  in  an 

§  372.  1  U.  S.  R.  S.  §  867.    See  Ex  parte  Colgate  v.  Compagnie  Francaise,  23  Fed. 

Fisk,  113  U.  S.  713;  Beardsley  v.  Littell,  R.  82.     But  see  Coit   v.  North  Carolina 

14  Blatchf.  102.  Gold  Amalgamating  Co.,  9  Fed.  R.  577. 

2  Randall  v.  Venable,  17  Fed.  R.  163.  8  U.  S.  R.  S.  §  724. 

8  See  Chapter  XIX.  9  U.  S.  R.  S.  §  724. 

4  Ex  parte  Fisk,  113  U.  S.  713.  But  10  Coit  v.  North  Carolina  Gold  Amal- 
see  Bryant  v.  Leyland,  6  Fed.  R.  12.  gamating  Co.,   9  Fed.  R.  577.    But  see 

5  Ex  parte  Fisk,  113  U.  S.  713.  Guyot  v.  Hilton,  32  Fed.  R.  743;  Colgate 

6  Treadwell  v.  Seymour,  U.  S.  C.  C,  v.  Campagnie  Francaise,  23  Fed.  R. 
S.  D.  N.  Y.  Oct.  29,  1889 ;  N.  Y.  Law  82  ;  Bischoffsheim  v.  Brown,  29  Fed.  R. 
Journal,  Oct.  30,  1889,  Lacombe,  J.  341. 

'  Guyot  v.   Hilton,  32   Fed.  R.  743; 


i 


§  373.]  ABATEMENT   AND   REVIVOR.  553 

action  at  law.11  The  order  will  not  be  granted  unless  the  appli- 
cant shows  that  the  paper  exists  and  is  pertinent  to  the  issue, 
and  in  the  possession  of  the  other  party.12  The  order  may  be 
absolute  or  conditional.13  A  motion  made  at  the  trial  is  too  late.14 
If  the  notice  was  not  served  a  sufficient  length  of  time  before 
the  trial,  the  trial  may  be  postponed.15  It  has  been  said  that 
such  an  order  should  not  be  made  against  a  corporation,  the 
proper  remedy  in  such  a  case  being  a  subpoena  duces  tecum  served 
on  one  of  its  officers.16  The  order  may  require  that  the  docu- 
ments be  filed  with  the  clerk,  or  that  copies  of  them  be  served 
on  the  party  seeking  them.17 

§  373.  Abatement  and  Revivor.  —  The  Revised  Statutes  pro- 
vide that  when  either  of  the  parties  to  a  suit  in  any  court  of  the 
United  States  dies  before  final  judgment,  the  executor  or  ad- 
ministrator of  such  deceased  party  may,  in  case  the  cause  of  ac- 
tion survives  by  law,  prosecute  or  defend  any  such  suit  to  final 
judgment.1  "  The  defendant  shall  answer  accordingly,  and  the 
court  shall  hear  and  determine  the  cause,  and  render  judgment 
for  or  against  the  executor  or  administrator  as  the  case  may  re- 
quire." 2  If  the  survivor  wishes  to  continue  the  suit,  he  must 
serve  the  executor  or  administrator  with  a  scire  facias,  issued 
from  the  clerk's  office  where  the  case  is  pending  ;  and  if  such 
personal  representative  fails  to  become  a  party  to  the  suit 
within  twenty  days  from  the  service  of  such  writ,  the  court  may 
render  judgment  against  the  estate  of  the  deceased  party  in  the 
same  manner  as  if  the  executor  or  administrator  had  voluntarily 
made  himself  a  party.3  The  executor  or  administrator  who 
thus  becomes  a  party  is  entitled,  upon  motion,  to  a  continuance 
till  the  next  term  of  the  court.4  If  there  are  two  or  more 
plaintiffs  or  defendants  in  a  suit,  where  the  cause  of  action  sur- 
vives to  the  surviving  plaintiff  or  against  the  surviving  defendant, 

11  Iasigi  v.  Brown,  1  Curt.  401.  C.  107  ;  Bank  of  U.  S.  v.  Kurtz,  2  Cranch 

"  Iasigi  v.  Brown,  1  Curt.  401 ;  Triplett  C.  C.  342. 

v.  Bank  of  Washington,  3  Cranch  C.  C.  :5  Geyger  v.  Gcygcr.  2  Dall.  332 ;  Bank 

646  ;   Jacques  v.   Collins,  2  Blatchf .  23  ;  of  U.  S.  v.  Kurtz,  2  Cranch  C.  C.  342. 

Buell    v.    Conn.    Mutual   Life   Ins.    Co.,  16  Merchants'  National  Bank  v.  State 

1  Cin.  L.  B.  51 ;  Bas  v.  Steele,  3  Wash.  National  Bank.  3  Cliff.  201. 

381.  »  Jacques  v.  Collins,  2  Blatchf.  23. 

I8  Dunham  v.  Riley,   4    Wash.    126;  §373.  *  U.  S.  R.  8.  §965. 
Iasigi  v.  Brown,  1  Curt.  401 ;  Merchants'  2  U.  R.  R.  S.  §  055.     See  Allen  v.  Fair- 
National  Bank  v.  State  National  Bank,  3  banks,  40  Fed.  R.  188. 
Cliff.  201.  8  U.  S.  R.  S.  §  955. 

"  Sampson  v.  Johnson,  2  Cranch  C.  i  U.  S.  R.  S.  §  955. 


554  PRACTICE   AT   COMMON   LAW.  [CHAP.  XXVIIL 

and  one  or  more  of  them  dies,  the  suit  and  action  do  not  thereby 
abate  ;  but  such  death  must  be  suggested  in  the  record,  and  the  ac- 
tion thereupon  proceed  at  the  suit  of  the  surviving  plaintiff  against 
the  surviving  defendant.5  The  practice  under,  and  the  construc- 
tion of,  this  section  are  not  clear  ;  but  the  following  points  seem 
settled.  The  statute  does  not  apply  to  real  actions.6  They  can- 
not be  revived."  This  section  only  regulates  the  manner  of 
revivor.  The  survivability  of  a  cause  of  action,  if  it  be  one  aris- 
ing under  the  statute  or  common  law  of  the  State  where  it  arose, 
depends  on  the  laws  of  that  State.8  If  the  cause  of  action  be 
one  created  by  a  Federal  statute,  its  survival  or  abatement  is 
not  affected  by  State  statutes  or  decisions.9  Thus,  a  qui  tarn 
action  to  recover  a  penalty  under  a  statute  of  the  United  States 
abates  by  the  death  of  the  defendant,  although  the  statutes  of  the 
State  where  the  case  is  pending  authorize  the  revivor  of  actions 
to  recover  penalties.10  An  action  for  the  infringement  of  a  patent 
survives  to  the  representatives  of  the  patentee.11 

§  374.  Trials.  — The  Revised  Statutes  provide  that  the  trial  of 
issues  of  fact  in  actions  at  common  law  in  the  Circuit  Courts 
shall  be  by  jury.1 

There  is  but  one  exception  to  this,  namely,  whenever  the 
parties  or  their  attorneys  of  record  file  with  the  clerk  a  stipu- 
lation in  writing  waiving  a  jury.2  Then,  the  issues  of  fact 
may  be  tried  and  determined  by  the  court  without  the  in- 
tervention of  a  jury  ;  and  the  rulings  of  the  court  on  the 
trial,  if  excepted  to  at  the  time  and  included  in  the  bill  of 
exceptions,  may  be  reviewed  in  the  Supreme  Court  upon  a  writ 
of  error  or  appeal  ;  and  when  the  findings  are  special  the  review 
may  extend  to  the  determination  of  the  sufficiency  of  the  facts 
found  to  support  the  judgment.3 

The  court's  findings  may  be  general  or  special,4  and  have  the 

5  U.  S.  R.  S.  §  956.  See  Allen  v.  Fair-  9  Schreiber  v.  Sharpless,  110  U.  S.  76; 
banks,  40  Fed.  R.  188.  May  v.  Logan  County,  30  Fed.  R.  250. 

6  Maeker  v.  Thomas,  7  Wheat.  530;  10  Schreiber  v.  Sharpless,  110  U  S.  76. 
Green  v.  Watkins,  6  Wheat.  260.  "  May  v.  Logan  County,  30  Fed.  R. 

7  Maeker  v.   Thomas,  7  Wheat.  530;  250. 

Green  v.  Watkins,  6  Wheat.  260.  §  374.  *  U.  S.  R.  S.  §  648. 

s  Warren  v.  Furstenheim,  35  Fed.  R.  2  U.  S.  R.  S.  §  649,  700. 
691;  Witters  v.  Foster,  26  Fed.  R.  737;  3  U.  S.  R.  S.  §  649,  700. 
Henshaw  v.  Miller,  17  How.  212  ;    Hat-         4  U.  S.  R.  S.  §  649  ;  Norris  v.  Jackson, 

field  v.  Bushnell,l  Blatchf.393;  Trigg  v.  9  Wall.  125;  Mining  Co.  v.  Taylor,  100 

Conway,  Hempst.  711.  U.  S.  37. 


§  374.] 


TRIALS.  OoO 


same  effect  as  the  verdict  of  a  jury.5  Findings  may  be  filed 
by  an  order  of  the  judge  who  tried  the  case,  nunc  pro  tunc, 
at  a  term  subsequent  to  the  entry  of  judgment  on  his  decision.6 
If  the  stipulation  is  not  in  writing  the  judgment  will  be  valid  ;7 
but  the  appellate  court  cannot  reverse  the  same  for  any  error  in 
the  admission  or  exclusion  of  evidence,  or  because  the  evidence 
was  insufficient  to  warrant  the  finding  of  the  judge,  or  upon  any 
other  question  of  law  growing  out  of  the  evidence.8  The  most 
appropriate  proof  of  a  compliance  with  the  statute  is  the  inclu- 
sion of  the  stipulation  in  the  judgment  roll.9  A  statement  in 
the  finding  of  facts,  the  record  of  the  judgment  entry,  or  the  bill 
of  exceptions  that  such  a  stipulation  was  made  in  writing,  will  be 
sufficient  proof  of  a  compliance  with  the  statute.10  It  seems  that 
when  the  court  has  authority  to  refer  a  case,  upon  consent  in 
writing  only,  an  order  expressed  to  be  made  "  by  consent  of  the 
parties,"  that  the  case  be  referred,  necessarily  implies  that  such 
consent  was  in  writing.11  When  the  parties  consent  that  the 
case  be  referred  to  the  judge  or  some  one  else  as  referee,  the 
only  question  presented  by  the  error  is  whether  there  is  any 
error  of  law  in  the  judgment  upon  the  facts  as  found  by  the 
referee.12  Where  the  case  was  tried  before  a  judge  under  an 
order  providing,  by  consent,  that  it  be  so  tried,  and  that  if  it 
should  appear  to  the  judge  that  there  are  questions  of  fact  the 
same  be  subsequently  submitted  to  a  jury,  it  was  held  that 
the  Supreme  Court  could  not  consider  on  appeal  rulings  of  the 
judge  upon  the  trial.13  A  judgment  upon  an  agreed  statement 
of  facts  presents  nothing  but  a  question  of  law,  and  may  be  re- 
viewed on  a  writ  of  error.14 

No  State  statute  15  or  constitutional 16  provision  regulating  the 

6  Norris  v.  Jackson,  9  Wallace,  125 ;  V1  Paine  v.  Central  Vermont  R.  R.  Co., 
U.  S.  v.  Dawson,  101  U.  S.  569.  118  U.  S.  152,  158 ;  Boogher  v.  Insurance 

e  Insurance  Co.  v.  Boon,  95  IT.  S.  117.  Co.,  103  U.  S.  90. 

7  Campbell  v.  Boyreau,  21  How.  223;  1S  Andes  v.  Slauson,  130  U.S.  435. 
Bond  v.  Dustin,  112  U.  S.  604,  606.  14  Bond  v.  Dustin,  112  U.  S.  604,  607; 

8  Campbell  v.  Boyreau,  21  How.  223;  Supervisors  ?.\  Kennicott,  103  U.  S.  554; 
Bond  v.  Dustin,  112  U.  S.  604;  Spalding  U.  S.  v.  Eliason,  16  Pet.  291  ;  Burr  v. 
v.  Manasse,  131  U.  S.  65.  Des  Moines  R.  R.  &  Nav.  Co.,  1  Wall.  99; 

»  Bond  v.  Dustin,  112  U.  S.  604,  607.  Campbell  v.  Boyreau,  21  How.  223,  226. 

11  Kearney    v.    Case,    12    Wall.    275,  15  Nudd    v.  Burrows,     91   U.    S.  426; 

284  ;    Dickinson    v.    Planters'    Bank,    16  Indianapolis  &  St.  L.  R.  R.  Co.  v.  Ilorst, 

Wall.   250;    Bond    v.    Dustin,  112   U.S.  93  U.  S.  291. 

604,607.  16  St.  Louis,    I.  M.  &    S.   Railway  v. 

u'  Bond  v.  Dustin,  112  U.  S.  604,  607 ;  Vickers,  122  U.  S.  360. 
Boogber  v.  Insurance  Co.,  103  U.  S.  90. 


556 


PRACTICE   AT   COMMON"   LAW. 


[CHAP.  XXYIII. 


maimer  of  the  trial,17  or  form  of  a  verdict,18  or  providing  for  a 
compulsory  reference,19  or  limiting  the  powers  of  the  judge  to 
comment  on  the  facts  in  his  charge  to  the  jury,20  or  directing 
that  such  charge  be  in  writing,21  has  any  influence  upon  the 
practice  in  the  Federal  courts.  But  it  has  been  said  that  the 
sufficiency  and  scope  of  pleadings,  and  the  form  and  effect  of 
verdicts,  in  actions  at  law,  are  matters  in  which  the  Circuit 
Courts  of  the  United  States  are  governed  by  the  practice  of 
the  courts  of  the  State  in  which  they  are  held.22 

The  trial  judge  has  no  power  to  order  a  compulsory  nonsuit 
or  dismiss  a  complaint.23  The  plaintiff  may  consent  to  a  non- 
suit.24 The  trial  judge  may  direct  a  verdict  for  either  party  in  a 
case  where  the  evidence  is  such  as  to  make  it  proper  to  set  aside 
a  verdict  in  favor  of  the  other.25  The  judge  may  also  comment 
upon  the  facts,  provided  that,  when  the  evidence  is  conflicting, 
he  makes  it  clear  to  the  jury  that  they  are  not  bound  by  his 
opinion.26 

The  manner  of  selecting  and  the  qualifications  of  jurymen  are 
prescribed  by  Statutes  of  the  United  States.27 

§  375.  Rules  of  Decision  at  Common  Law.  —  The  Revised  Stat- 
utes provide  that  "  the  laws  of  the  several  States,  except  where 
the  Constitution,  treaties,  or  statutes  of  the  United  States  other- 
wise require  or  provide,  shall  be  regarded  as  rules  of  decision  in 
trials  at  common  law,  in  the  courts  of  the  United  States,  in  Cases 
where  they  apply."  1     It  has  been  held  that  this  statute  does  not 


»  Nudd  v.  Burrows,  91  U.  S.  426;  In- 
dianapolis &  St.  L.  R.  R.  Co.  v.  Horst,  93 
U.  S.  291 ;  Vicksburg  &  M.  R.  R.  Co.  v. 
Putnam,  118  U.  S  545  ;  St.  Louis,  I.  M.  & 
S.  Railway  v.  Vickers,  122  U.  S.  360. 

i8  Indianapolis  &  St.  L.  R.  R.  Co.  v. 
Horst,  93  U.  S.  291 ;  Abbott  v.  Curtis  & 
Co.  Manuf.  Co.,  25  Fed.  R.  402 ;  U.  S. 
Mutual  Accident  Association  v.  Barry, 
131  U.  S.  100. 

19  Howe  Machine  Co.  v.  Edwards,  15 
Blatchf.  402;  U.  S.  p.  Rathbone,  2 
Paine,  578. 

- '  Vicksburg  &  M.  R.  R.  Co.  v.  Putnam, 
118  U.  S.  545  ;  St.  Louis,  I.  M.  &  S.  Rail- 
way v.  Vickers,  122  U.  S.  360 ;  U.  S.  i: 
Phila.  &  Reading  R.  R.  Co.,  123  U.  S. 
113;  Rucker  v.  Wheeler,  127  U.  S.  85, 
93;  Lovejoy  v.  U.  S.,  128  U.  S.  171. 

21  Kudtl  v.  Burrows,  97  U.  S.  426. 


22  Gray,  J.,  in  Glenn  v.  Sumner,  132 
U.  S.  152,  156.  See  Bond  v.  Dustin,  112 
U.  S.  604  ;  and  §  300. 

23  Elmore  v.  Grymes,  1  Pet.  469 ; 
D'Wolf  v.  Rabaud,  1  Pet.  476 ;  Crane 
v.  Morris,  6  Pet.  598  ;  Silsby  v.  Foote,  14 
How.  218 ;  Castle  v.  Bullard,  23  How.  172. 

2i  Elmore  v.  Grymes,  1  Pet.  469. 

25  Randall  v.  Baltimore  &  O.  R.  R.  Co., 
109  U.  S.  478. 

26  Vicksburg  &  M.  R.  R.  Co.  v.  Putnam, 
118  U.  S.  545 ;  St.  Louis,  I.  M.  &  S.  Rail- 
way v.  Vickers,  122  U.  S.  360 ;  U.  S.  v. 
Phila.  &  Reading  R.  R.  Co.,  123  U.  S. 
113;  Rucker  v.  Wheeler,  127  U.  S.  85,  93; 
Lovejoy  v.  U.  S.,  128  U.  S.  171. 

27  U.  S.  R.  S.  §§  800-877  ;  Brewer  v. 
Jacobs,  22  Fed.  R.  217  ;  Lovejoy  v.  U.  S., 
128  U.  S.  171. 

§  375.  »  U.  S.  R.  S.  §  721. 


§  375.]  RULES   OF   DECISION    AT   COMMON   LAW.  557 

apply  to  questions  of  commercial  law,  or  those  which  involve  the 
application  of  principles  of  the  common  law  which  are  general 
throughout  the  United  States,  and  although  settled  by  the  de- 
cision of  State  courts  are  not  regulated  by  a  State  statute.  In 
such  cases,  the  Federal  courts  are  not  bound  by  the  decisions  of 
the  State  courts.2  Such  are  questions  in  the  law  of  insurance,3 
liability  for  negligence  by  individuals4  and  common  carriers,5 
negotiable  paper,6  municipal  bonds,7  bills  of  lading,8  master  and 
servant,9  and  contracts  by  corporations.10  Thus,  irrespective  of  the 
decisions  of  the  courts  of  the  States  where  they  are  held,  the  Fed- 
eral courts  hold  :  that  in  suits  for  damages  by  negligence  the  con- 
tributory negligence  of  the  plaintiff  is  a  defense,  the  burden  of 
proving  which  rests  upon  the  defendant,  and  that  the  plaintiff  is 
not  bound  as  a  part  of  his  case  to  disprove  the  same;11  that  a 
common  carrier  cannot  by  contract  relieve  himself  from  liability 
for  negligence ; 12  and  that  a  person  who  has  received  negotiable 
paper  in  payment  of  a  pre-existing  indebtedness  is  a  holder  for 
value.13  When  the  decisions  of  the  courts  of  a  State  have  estab- 
lished a  local  rule  of  property,  they  will  usually  be  followed  by  the 
Federal  courts  held  within  such  State.14  The  statute  law  of  a  State 
will  always  be  followed  by  a  Federal  court  there  held,  so  far  as  the 

2  Swift  v.  Tyson,  16  Pet.   1  ;  Burgess     Douglass  v.  Pike  County,  101  U.  S.  677, 
v.  Seligman,  107  U.  S.  20,  34,  and  cases     686. 

cited.     For  a  full  discussion  of  the  sub-         8  Myrick  v.  Michigan  Central   R.   R. 

ject,  see  Holt  on  Concurrent  Jurisdiction  Co.,  107  U.  S.  102,  109  ;  Railroad  Co.  v. 

of  the  Federal  and  State  Courts,  chs.  vi.  Lockwood,  17  Wall.  357;  Pollard  v.  Vin- 

and  vii.     See  also  §  298.  ton,  105  U.  S.  7. 

3  Carpenter  v.  Providence  Washington  9  Hough  v.  Railway  Co.,  100  U.  S.  213, 
Ins.  Co.,  16  Pet.  495 ;  Hening  v.  U.  S.  Ins.  226. 

Co.,  2  Dill.  26.  10  Railroad  Co.  v.  Lockwood,  17  Wall. 

*  Hough  v.  Railway  Co.,  100  U.  S.  213,  357  ;  Hening  v.  U.   S.  Ins.   Co.,   2    Dill. 

226.  26;    Myrick  v.  Michigan  Central  R.  R. 

6  Myrick   v.  Michigan   Central  R.  R.  Co.,  107  U.  S.  102,  109. 

Co.,  107   U.  S.  102,  109 ;    Railroad  Co.  v.  n  Railroad  Co.  v.  Gladmon,  15  Wall. 

Lockwood,  17  Wall.  357.  401;   Indianapolis  &  St.  L.  R.  R.  Co.  v. 

6  Swift  v.  Tyson,    16    Pet.    1 ;    Pail-  Ilorst,  93  U.  S.  291  ;  Northern  Pac.  R.  R. 
road   Company    v.    National    Bank,    102  Co.  ».  Mares,  123  U.  S.  710. 

U.  S.  14 ;   Watson  v.  Tarpley,  18  How-  l-  Railroad   Co.  v.  Lockwood.  17  Wall, 

ard,  517  ;   Tilden   v.  Blair,  21   Wallace,  357  ;   Bank  of  Kentucky  v.  Adams  Ex- 

241.  press  Co.,  93  U.  S.  174. 

7  Olcott  v.  Supervisors,  10  Wall.  678 ;  18  Swift  v.  Tyson,  16  Pet.  1  ;  Rail- 
Township  of  Pine  Grove  v.  Talcott,  19  road  Co.  v.  National  Bank,  102  U  S.  14. 
Wall.  600;  Town  of  Venice  v.  Murdock,  "  Neves  v.  Scott,  13  How.  268,  271  ; 
92  U.  S.  494  ;  Commissioners  of  Johnson  Gaines  v.  Fuentes,  92  U.  S.  10,  20;  Ellis 
County  v.  Thayer,  94  U.  S.  631 ;  Crom-  v.  Davis,  109  U.  S.  485;  Lorman  v. 
well  v.  County  of  Sac,  96  IT.  S.  51  ;  Fair-  Clarke,  2  McLean,  568.  See  Bucher  v. 
field  v.  Gallatin  County,   100   U.   S.  47  ;  Cheshire  Railroad  Co.,  125  U.  S.  555. 


558  PRACTICE   AT   COMMON   LAW.  [CHAT.  XXVIII. 

statutes  establish  a  local  rule  of  property  ; 15  and  nearly  always,  so 
far  as  they  create  or  abolish  rights  as  distinct  from  remedies.16 
The  construction  of  a  statute  by  the  courts  of  the  State  which  en- 
acted it  will  be  followed  by  the  Federal  courts,  provided  such 
construction  is  clear,  and  was  made  before  the  facts  occurred  out 
of  which  the  question  for  adjudication  arose.17  If  a  contract 
when  made  is  valid  by  the  laws  of  the  State  as  then  construed  by 
its  courts,  subsequent  decisions  altering  the  construction  of  those 
laws  will  not  be  followed  by  the  Federal  courts.18  Whether  a 
State  statute  has  been  passed  by  the  legislature,  is  a  question  as 
to  which  the  Federal  courts  will  follow  the  decisions  of  the  courts 
of  such  State.19  Federal  courts  will  in  actions  at  common  law  fol- 
low the  Statutes  of  Limitations20  and  Statutes  of  Frauds21  and  Re- 
cording Acts 22  of  the  State  where  such  courts  are  held,  and  the 
construction  given  to  those  statutes  by  the  courts  of  the  States 
which  enacted  them  so  far  as  they  apply,  subject  to  the  exceptions 
already  noted.  The  United  States  are  not  bound  by  any  State 
Statutes  of  Limitation  even  if  expressly  named  therein.23  It  has 
been  held  at  circuit,  that  a  State  statute  providing  that  purchasers 
without  actual  notice  of  a  pending  suit  are  not  bound  by  the  pro- 
ceedings therein  unless  a  notice  of  lis  pendens  has  been  filed 
in  a  designated  public  office,  will  be  followed  by  the  Federal 
court,  there  held,  which  will  require  notice  of  the  pendency 
of  a  suit  in  such  a  Federal  court  to  be  filed  in  such  office  so  as 


15  D'Wolf  v.  Eabaud,  1  Pet.  476  ;  Bacon  v.  N.  W.  Mutual  Life  Ins.  Co..  131 
Clark  v.  Smith,  13  Pet.  195 ;  Fitch  v.  U.  S.  258 ;  Hawkins  v.  Glenn,  131  U.  S. 
Creighton,  24  How.  159  ;  Brine  v.  Insur-  319,  331. 

ance  Co.,  96  U.  S.  627  ;  Mills  v.  Scott,  99  18  Ohio  Life  Ins.  &  Trust  Co.  v.  Debolt, 

U.  S.  25 ;  Van  Norden  v.  Morton,  99  U.  S.  16  How.   416;    Gelpcke  v.   Dubuque,  1 

378 ;    Cummings  ?>.  National   Bank,  101  Wall.  175 ;  Havemeyer  v.  Iowa  County, 

U.  S.  153,  157  ;   Holland  v.  Challen,  110  3  Wall.  294;   Thomson  v.  Lee  County,  3 

U.   S.    15;    Reynolds    v.    Crawfordsville  Wall.  327 ;  Douglass  v.  Pike  County,  101 

First  National  Bank,  112  U.  S.  405.  U.   S.   677;    Louisiana   v.   Pilsbury,    105 

16  Bucher  v.  Cheshire  Railroad  Co.,  U.  S.  278 ;  Carroll  County  v.  Smith,  111 
125  U.  S.  555.  But  see  Watson  v.  Tarp-  U.  S.  556  ;  Anderson  v.  Santa  Anna,  116 
ley,  18  How.  517.  U.  S.  356. 

17  Bell  v.  Morrison,  1  Pet.  351 ;  19  Leavenworth  County  v.  Barnes,  94 
D'Wolf  v.  Rabaud,  1  Pet.  476;  Van  U.  S.  70  ;  South  Ottawa  v.  Perkins,  94  U. 
Rensselaer  v.  Kearney,  11  How.  297;  S.  260 ;  Post  v.  Supervisors,  105  U.  S.  667. 
Tioga  R.  R.  Co.  v.  Blossburg  &  C.  R.  R.  20  Bell  v.  Morrison,  1  Pet.  351 ;  Tioga 
Co.,  20  Wall.  137 ;  Townsend  v.  Todd,  91  R.  R.  Co.  v.  Blossburg  &  C.  R.  R.  Co.,  20 
U.  S.  452  ;  U.  S.  v.  Fox,  94  U.  S.  315 ;  Wall.  137. 

Scipio  v.  Wright,  101  U.  S.  665 ;  Burgess  21  D'Wolf  v.  Rabaud,  1  Pet.  476. 

».  Seligman,    107   U.  S.  20,  34  ;    Bucher  &  Townsend  v.  Todd,  91  U.  S.  452. 

v.  Cheshire  Railroad  Co.,  125  U.  S.  555;  ^D.Sd.  Thompson.,  98  U.  S.  486. 


§  377.]  BILLS   OF   EXCEPTIONS.  559 

to  bind  such  subsequent  purchasers.24  A  State  statute  giving 
the  right  to  two  trials  in  an  action  of  ejectment  will  be  followed 
by  the  Federal  courts  there  held.25 

§  376.  New  Trials.  —  The  power  of  a  Federal  court  to  grant 
a  new  trial  cannot  be  enlarged  or  restricted  by  a  State  statute.1 
The  Federal  courts  have  power  to  grant  new  trials  after  a  trial 
by  jury  "for  reasons  for  which  new  trials  have  usually  been 
granted  in  the  courts  of  law."  2  A  motion  for  a  new  trial  must 
be  made  or  noticed  for  argument  during  the  term  at  which  the 
trial  took  place,  or  by  special  leave  of  the  court  granted  upon  a 
petition  filed  within  forty-two  days  after  the  entry  of  judgment.3 
A  motion  for  a  new  trial  upon  exceptions,  or  because  the  verdict 
was  against  the  evidence  or  against  the  weight  of  evidence,  or 
because  of  excessive  or  insufficient  damages,  is  regularly  argued 
before  the  judge  who  tried  the  case.4  He  may,  if  he  chooses, 
ask  another  judge  to  assist  him  in  rendering  his  decision  ; 5  and 
the  latter  may  then  hear  the  argument ;  6  but  neither  party  has 
the  right  to  demand  the  participation  of  another  judge  in  the 
decision.7  The  power  of  Congress  to  authorize  such  a  re-exam- 
ination of  the  proceedings  upon  the  trial  has  been  questioned.8 
An  order  granting  or  denying  a  motion  for  a  new  trial  cannot  be 
reviewed  upon  a  writ  of  error.9 

§  377.  Bills  of  Exceptions.  —  The  time  and  manner  of  taking 
exceptions  and  filing  bills  of  exceptions  are  also  matters  as  to 
which  the  Federal  courts  act  independently  of  the  State  prac- 
tice.1 The  Revised  Statutes  provide  that  "  a  bill  of  exceptions 
allowed  in  any  cause  shall  be  deemed  sufficiently  authenticated 
if  signed  by  the  judge  of  the  court  in  which  the  cause  was  tried, 
or  by  the  presiding  judge  thereof,  if  more  than  one  judge  sat  on 

24  Jones  v.  Slauson,  U.  S.  C.  C,  S  D.  <*  Tves   „.    Grand   Trunk   Ry.  Co.,  85 

N.  Y.,  Lacombe,  J.,  Oct.  29,  1889,  40  Fed.  Fed.   R.    176;     Adams  v.   Spangler,    17 

E.  314.  Fed.  R.  133. 

-5  Equator  M.  &  S.  Co.   v.  Hall,  106         8  Adams  v.  Spangler,  17  Fed.  R.   133; 

U.  S.  86.     But  see  §  376.  Ives  v.  Grand  Trunk  Ry.  Co.,  35  Fed.  R. 

§  376.  !  Indianapolis  &  St.  L.  R.  R.  Co.  176. 
»'.  Ilorst,93  IT.  S.  291;  Newcomb  t>.  Wood,  7  Ives   v.   Grand  Trunk   Ry.   Co.,  35 

97  U.  S.  581.     But  see  Equator  M.  &  S.  Fed.  R.  176. 
Co.  v.  Hall,  106  U.  S.  86;  and  §  375.  8  Ives   v.    Grand    Trunk   Ry.  Co.,  35 

2  U.  S.  R.  S.  §  726;  Clark  v.  Sohier,  Fed.  R.  176.  Cf.  Metropolitan  R.  R.  Co. 
1  W.  &  M.  368  ;  Milliken  v.  Ross,  9  Fed.  It.  v.  Moore,  121  U.  S.  558,  673. 

855.  9  Missouri   Pac.   Ry.  Co.   v.  Chicago 

3  U.  S.  R.  S.  §  987.     See  §380.  &  A.  Ry.  Co.,  132  U.  S.  191. 

4  Ives  v.  Grand  Trunk  Ry.  Co.,  35  §  377.  l  Chateaugay  Ore  &  Iron  Co., 
Fed.  R.  176.  Petitioner,  128  U.  S.  544. 


560 


PRACTICE   AT   COMMON   LAW. 


[CHAP.  XXVIII. 


the  trial  of  the  cause,  without  any  seal  of  court  or  judge  being 
annexed  thereto."  2  If  the  hill  of  exceptions  is  neither  signed  nor 
sealed,  it  will  be  disregarded  upon  a  writ  of  error.3  The  rules 
of  the  Supreme  Court  provide  that  "the  judges  of  the  Circuit 
and  District  Courts  shall  not  allow  any  bill  of  exceptions  which 
shall  contain  the  charge  of  the  court  at  large  to  the  jury  in 
trials  at  common  law,  upon  any  general  exception  to  the  whole 
of  such  charge.  But  the  party  excepting  shall  be  required  to 
state  distinctly  the  several  matters  of  law  in  such  charge  to 
which  he  excepts ;  and  these  matters  of  law,  and  these  only, 
shall  be  inserted  in  the  bill  of  exceptions,  and  allowed  by  the 
court." 4  A  general  exception  to  the  whole  charge  is  of  no 
effect  where  the  charge  contains  distinct  propositions  and  any 
one  of  them  is  free  from  objection.5  An  exception  to  the  refusal 
of  the  court  to  instruct  the  jury  in  language  prayed  for  by  coun- 
sel is  of  no  avail,  if  the  refusal  be  followed  by  instructions  in  the 
general  charge  in  different  language  but  substantially  to  the  same 
effect.6  The  rules  of  the  Circuit  Courts  usually  regulate  the 
manner  of  settling  bills  of  exceptions.  When  they  are  silent, 
the  old  English  practice  is  followed.7 

§  378.  Judgments.  —  The  Federal  courts  should  follow  the 
State  practice  in  recording  judgments.1  The  Revised  Statutes 
provide  that  "  judgments  and  decrees  rendered  in  a  Circuit  or 
District  Court,  within  any  State,  shall  cease  to  be  liens  on  real 
estate  or  chattels  real,  in  the  same  manner  and  at  like  periods 
as  judgments  and  decrees  of  the  courts  of  such  State  cease  by 
law,  to  be  liens  thereon."  2  A  recent  statute  provides  as  follows: 
"  That  judgments  and  decrees  rendered  in  a  circuit  or  district 
court  of  the  United  States  within  any  State,  shall  be  liens  on 
property  throughout  such  State  in  the  same  manner  and  to  the 
same  extent  and  under  the  same  conditions  only  as  if  such  judg- 
ments and  decrees  had  been  rendered  by  a  court  of  general  juris- 


2  Chateaugay  Ore  &  Iron  Co.,  Peti- 
tioner, 128  U.  S.  544,  555. 

3  Mussina  v.  Cavazos,  6  Wall.  355,  363. 
«  Kule  4. 

5  Anthony  v.  Louisville  &  Nashville 
R.  R.  Co.,  132  U.  S.  172;  Lincoln  v. 
Claflin,  7  Wall.  132,  139;  Cooper  v. 
Schlesinger,  111  U.  S.  148,  151 ;  Mobile 
&  M.  Ry.  Co.  v.  Jurey,  111  U.  S.  584, 
596  ;  Burton  v.  West  Jersey  Ferry  Co., 
114  U.  S.  474,  476. 


6  Anthony  v.  Louisville  &  Nashville 
R.  R.  Co.,  132  U.  S.  172. 

7  Chateaugay  Ore  &  Iron  Co.,  Peti- 
tioner, 129  U.  S.  544,  555. 

§  378.  1  Morrison  v.  Bernards  Town- 
ship, 35  Fed.  R.  400 ;  25  St.  at  L.  ch.  729 
§  1,  P-  357. 

2  U.  S.  R.  S.  §  967.  See  Sellers  v.  Cor- 
win,  5  Ohio,  398. 


§  379.]  COREECTION   OF  JUDGMENTS.  561 

diction  of  such  State  ;  Provided,  That  whenever  the  laws  of  any 
State  require  a  judgment  or  decree  of  a  State  court  to  be  regis- 
tered, recorded,  docketed,  indexed,  or  any  other  thing  to  be 
done,  in  a  particular  manner,  or  in  a  certain  office  or  county,  or 
i  parish  in  the  State  of  Louisiana  before  a  lien  shall  attach,  this 
act  shall  be  applicable  therein  whenever  and  only  whenever  the 
laws  of  such  State  shall  authorize  the  judgments  and  decrees  of 
the  United  States  courts  to  be  registered,  recorded,  docketed, 
indexed,  or  otherwise  conformed  to  the  rules  and  requirements 
relating  to  the  judgments  and  decrees  of  the  courts  of  the  State." 
"  That  the  clerks  of  the  several  courts  of  the  United  States  shall 
prepare  and  keep  in  their  respective  offices  complete  and  conven- 
ient indices  and  cross-indices  of  the  judgment  records  of  said 
courts,  and  such  indices  and  records  shall  at  all  times  be  open 
to  the  inspection  and  examination  of  the  public."  "  Nothing 
herein  shall  be  construed  to  require  the  docketing  of  a  judgment 
or  decree  of  a  United  States  court,  or  the  filing  of  a  transcript 
thereof,  in  any  State  office  within  the  same  county  or  parish  in 
the  State  of  Louisiana  in  which  the  judgment  or  decree  is  ren- 
dered, in  order  that  such  judgment  or  decree  may  be  a  lien  on 
any  property  within  such  county."3 

§  379.  Correction  of  Judgments  by  Courts  that  rendered  them. — 
In  the  correction,  amendment,  and  vacation  of  their  own  judg- 
ments, the  Federal  courts  act  independently  of  the  law  regulat- 
ing the  State  courts.1  "  The  question  relates  to  the  power  of  the 
courts  and  not  to  the  mode  of  procedure."  2  At  the  term  at  which 
it  is  entered  a  judgment  may,  for  cause  shown,  be  set  aside, 
modified  or  amended,  by  the  court  where  it  was  entered.3  After 
the  terra  has  expired,  unless  a  motion  for  the  relief  was  made  or 
noticed  during  that  term,4  no  alteration  or  correction  can  be  made 
except  by  writ  of  error,  and  in  that  class  of  cases  in  which  the 
writ  of  error  coram  nobis  was  issued  in  the  old  English  practice.5 
"  The  writ  of  error  coram  nobis  was  allowed,  to  bring  before  the 
same  court  in  which  the  error  was  committed  some  matter  of 

»  25  St.  at  L.  ch.  729,  p.  357.  *  Amy   v.  Watertown,  130  U.  S.  301, 

§  379.  »  Bronson  v.  Schulten,  104  U.  S.  313  ;   Bronson  v.  Schulten,  104  U.  S.  410, 

410,417.  415,416. 

2  Bronson  v.  Schulten,  104  U.  S.  410,         5  Bronson  v.  Schulten,  104  U.  S.  410, 

417,  per  Miller,  J.  415,416;   Phillips  v.  Negley,  117  U.   S. 

8  Bronson  v.  Schulten,  104  U.  S.  410,  6G5. 
415. 

36 


562 


PRACTICE    AT   COMMON    LAW. 


[CHAP.  XXVIII. 


fact  which  had  escaped  attention  and  which  was  material  in  the 
proceeding.  These  were  limited  generally  to  the  facts  that  one 
of  the  parties  to  the  judgment  had  died  before  it  was  rendered, 
or  was  an  infant  and  no  guardian  had  appeared  or  been  appointed, 
or  was  a  feme  covert,  or  the  like,  or  error  in  the  process  through 
default  of  the  clerk."6  "In  practice  the  same  end  is  now  gen- 
erally attained  b}'  motion,  sustained,  if  the  case  require  it,  by 
affidavits ;  and  it  is  observable  that  so  far  has  the  latter  mode 
superseded  the  former  in  the  British  practice,  that  Blackstone 
does  not  even  notice  this  suit  among  his  remedies." 7 

§  380.  Executions  and  Proceedings  Supplementary  thereto.  —  A 
statute  passed  June  1,  1872,  and  incorporated  in  the  Revised 
Statutes,  December  1,  1873,  provides  that  "  the  party  recovering 
a  judgment  in  any  common  law  cause  in  any  Circuit  or  District 
Court,  shall  be  entitled  to  similar  remedies  upon  the  same,  by 
execution  or  otherwise,  to  reach  the  property  of  the  judgment 
debtor,  as  are  now  provided  in  like  causes  by  the  laws  of  the 
State  in  which  such  court  is  held,  or  by  any  such  hereafter  en- 
acted which  may  be  adopted  by  general  rules  of  such  Circuit  or 
District  court  ;  and  such  courts  ma}'  from  time  to  time,  by 
general  rules,  adopt  such  State  laws  as  may  hereafter  be  in  force 
in  such  State  in  relation  to  remedies  upon  judgments,  as  afore- 
said, by  execution  or  otherwise."  x  In  pursuance  of  this  statute, 
the  Circuit  and  District  Courts  have  generally  promulgated  rules 
adopting  the  State  practice  in  this  respect.2  The  adoption  of 
such  a  rule  gives  the  Federal  court  power  to  enforce  the  pro- 
ceedings supplementary  to  execution  authorized  by  the  State 
statutes.3  The  Revised  Statutes  provide  that  "  all  writs  of  execu- 
tion upon  judgments  or  decrees  obtained  in  a  Circuit  or  District 
court,  in  any  State  which  is  divided  into  two  or  more  districts, 
may  run  and  be  executed  in  any  part  of  such  State  ;  but  shall  be 
issued  from,  and  made  returnable  to,  the  court  wherein  the  judg- 
ment was  obtained."  4  In  cases  where  a  writ  of  error  lies  to  the 
Supreme  Court,  the  execution  cannot  be  issued  till  ten  days 

2  See  for  examples  the  rules  promul- 
gated by  the  U.  S.  C.  C,  S.  D.  N.  Y., 
October  11,  1878,  and  December  29, 1881. 

8  Ex  parte  Boyd,  105  U.  S.  647  ;  Canal 
&  C.  Streets  R.  B.  Co.  v.  flart,  114  U.  S. 
654,  661.     See  §  21. 

*  U.  S.  R.  S.  §  985. 


6  Bronson  v.  Schulten,  104  U.  S.  410, 
416,  per  Miller,  J. ;  Phillips  v.  Negley, 
117  U.  S.  665. 

7  Pickett's  Heirs  v.  Legerwood,  8  Pet. 
144,  148,  per  Johnson,  J. 

§  380.  i  U.  S.  R.  S.  §  916  ;  4  St.  at  L. 
ch.  68,  p.  281.  Lamaster  v.  Keeler,  123 
U.  S.  376. 


§  380.]        EXECUTIONS   AND   SUPPLEMENTARY   PROCEEDINGS.  563 

after  the  entry  of  the  judgment.5     The  writ  may,  however,  be 
previously  prepared  by  the  clerk.6     When  it  is  required  by  the 
laws  of  any  State  that  goods  taken  in  execution  on  a  writ  of 
fieri  facias  shall  be  appraised  before  they  are  sold,  the  appraisers 
appointed  under  the  authority  of  the  State  may  appraise  goods 
taken  in  execution  on  such  a  writ  issued  out  of  a  court  of  the 
United  States,  in  the  same  manner  as  if  such  writ  had  issued  out 
of  a  court  of  such  State  ;  and  the  marshal,  in  whose  custody  the 
goods  are,  shall  summon  the  appraisers  in  the  same  manner  as 
the  sheriff  is,  by  the  laws  of  such  State,  required  to  summon  them, 
and  if  the  appraisers,  after  having  been  duly  summoned,  fail  to 
attend  and  perform  the  duties  required  of  them,  the  marshal  may 
proceed  to  sell  such  goods  without  an  appraisement.7     When 
such  appraisers  attend,  they  are  entitled  to  the  like  fees  as  in 
cases  of  appraisement  under  the  laws  of  such  State.8     When  a 
marshal  dies,  or  is  removed  from  office,  or  his  term  expires,  after 
he  has  taken  under  execution  any  real  property  and  before  sale 
or  other  final  disposition  thereof,  the  like  process  issues  to  the 
succeeding   marshal,  and  the  same  proceeding  is  had  as  if  his 
predecessor  were  still  in  office.9     In  such  a  case,  when  the  former 
marshal  has  sold  the  real  estate  but  executed  no  deed,  the  court 
may,  on  application  by  the  purchaser,  or  by  the  plaintiff  at  whose 
suit  the  sale  was  made,  setting  forth  the  case  and  the  reason  why 
the  title  was  not  perfected  by  the  former  marshal,  order  his  suc- 
cessor to  perfect  the  title,  and  execute  and  deliver  a  deed  to  the 
purchaser  upon  payment  of  the  balance  due.10     The  marshal  of 
a  district  of  the  United  States  has  substantially  the  same  powers 
and  duties  as  a  sheriff  in  one  of  the  counties  within  such  dis- 
trict.11     Under  the  Revised  Statutes,  "  interest  is  allowed  on  all 
judgments  in    civil    causes    recovered    in    a  Circuit   or   District 
Court,  and  may  be  levied  by  the  marshal  under  process  of  exe- 
cution issued  thereon,  in  all  cases  where,  by  the  law  of  the  State 
in  which  such  court  is  held,  interest  may  be  levied  under  pro- 
cess of  execution  on  judgments  recovered  in  the  courts  of  such 
State."12     The  interest  is  calculated  from  the  date  of  the  judg- 

6  United     States     Revised  Statutes,         9  U.  S.R.  S.  §  994;  Doolittle  v.  Bryan, 

§  1007.  14  How.  563. 

6  Board  of  Commissioners  v  Gorman,         10  U.  S.  R.  S.  §  994;  Byers  v.  Fowler, 
19  Wall.  6G1.  12  Ark.  218. 

7  U.  S.  R.  S.  §  993 ;  Wayman  v.  South-        "  U.  S.  R.  S.  §  787  ;  In  re  Neagle,  39 
ard,  10  Wheat.  1.  Fed.  R,  833. 

8  U.  S.  R.  S.  §  903.  "  U.  S.  R.  S.  §  966. 


564  PRACTICE   AT   COMMON   LAW.  [CHAP.  XXVIII. 

ment,  at  such  rate  as  is  allowed  by  law  on  judgments  "recovered 
in  the  courts  of  such  State."  13  This  statute  does  not  apply  to 
decrees  in  equity.14  The  Revised  Statutes  further  provide  that 
"  when  a  circuit  court  enters  judgment  in  a  civil  action,  either 
upon  a  verdict  or  on  a  finding  of  the  court  upon  the  facts,  in 
cases  where  such  finding  is  allowed,  execution  may,  on  motion 
of  either  party,  at  the  discretion  of  the  court,  and  on  such  con- 
ditions for  the  security  of  the  adverse  party,  as  it  may  judge 
proper,  be  stayed  forty-two  days  from  the  time  of  entering  judg- 
ment, to  give  time  to  file  in  the  clerk's  office  of  said  court  a 
petition  for  a  new  trial.  If  such  petition  is  filed  within  said 
term  of  forty-two  days,  with  a  certificate  thereon  from  any  judge 
of  such  court  that  he  allows  it  to  be  filed,  which  certificate  he 
may  make  or  refuse  at  his  discretion,  execution  shall,  of  course, 
be  further  stayed  to  the  next  session  of  said  court.  If  a  new 
trial  be  granted,  the  former  judgment  shall  be  thereby  rendered 
void." 15  "  In  any  states  where  judgments  are  liens  upon  the 
property  of  the  defendant,  and  where,  by  the  laws  of  such 
state,  defendants  are  entitled,  in  the  courts  thereof,  to  a  stay  of 
execution  for  one  term  or  more,  defendants  in  actions  in  the 
courts  of  the  United  States,  held  therein,  shall  be  entitled  to  a 
stay  of  execution  for  one  term."  16 

"  When  a  recovery  is  had  in  any  suit  or  proceeding  against  a 
collector  or  other  officer  of  the  revenue  for  any  act  done  by  him, 
or  for  the  recovery  of  any  monej"  exacted  by  or  paid  to  him  and 
by  him  paid  into  the  Treasury,  in  the  performance  of  his  official 
duty,  and  the  court  certifies  that  there  was  probable  cause  for 
the  act  done  by  the  collector  or  other  officer  or  that  he  acted 
under  the  directions  of  the  Secretary  of  the  Treasury,  or  other 
proper  officer  of  the  Government,  no  execution  shall  issue  against 
such  collector  or  other  officer,  but  the  amount  so  recovered  shall 
upon  final  judgment,  be  provided  for  and  paid  out  of  the  proper 
appropriation  from  the  Treasury.17  The  same  rule  prevails  as  to 
an  action  against  a  person  for  or  on  account  of  anything  done  by 

w  U.  S.  R.  S.  §966.  14  Blatchf.  289;  Andrae  v.  Redfield,  12 

w  Perkins  v.  Fourniquet,  14  How.  328.  Blatchf.  407  ;  Frericha  v.  Coster,  22  Fed. 

15  U.  S.  R.  S.  §  987;  Camburton  v.  R.  637 ;  Sehell  v.  Cochran,  107  U.  S.  625; 
U.  S.,  95  U.  S.  285,  288;  Emma  Silver  U.  S.  v.  Sherman,  98  U.  S.  565;  Campbell 
Mining  Co. v.  Parks,  14  Blatchf. 41 1,413;  v.  James,  3  Fed.  R.  513;  Dunnegan  v. 
Brown  v.  Evans,  18  Fed.  R.  56.  U.  S.,  17  Court  of  Claims,  240,  247  ;  White 

16  U.  S.  R.  S.  §  988.  v.   Arthur,  10  Fed.  R.   80;    Flanders  v. 
"  U.  S.  R.  S.  §  989 ;  Cox  v.  Barney,    Seelye,  105  U.  S.  718. 


§  381.]  CONDEMNATION   PROCEEDINGS.  565 

him  while  an  officer  of  either  House  of  Congress  in  the  discharge 
of  his  official  duty."  18 

§  381.  Condemnation  Proceedings.  —  The  act  of  February  9, 
1887,  provides  :  that  "in  every  case  in  which  the  secretary  of  the 
Treasury  or  any  other  officer  of  the  Government  has  been,  or  here- 
after shall  be,  authorized  to  procure  real  estate  for  the  erection 
of  a  public  building  or  for  other  public  uses  he  shall  be,  and 
hereby  is,  authorized  to  acquire  the  same  for  the  United  States 
by  condemnation  under  judicial  process,  whenever  in  his  opinion 
it  is  necessary  or  advantageous  to  the  Government  to  do  so,  and 
the  United  States  circuit  or  district  courts  of  the  district 
wherein  such  real  estate  is  located,  shall  have  jurisdiction  of 
proceedings  for  such  condemnation,  and  it  shall  be  the  duty  of 
the  Attorney-General  of  the  United  States,  upon  every  applica- 
tion of  the  Secretary  of  the  Treasury,  under  this  act,  or  such 
other  officer,  to  cause  proceedings  to  be  commenced  for  condem- 
nation, within  thirty  days  from  the  receipt  of  the  application  at 
the  Department  of  Justice."  "  The  practice,  pleadings,  forms  and 
modes  of  proceeding  in  causes  arising  under  the  provisions  of  this 
act  shall  conform  as  near  as  may  be,  to  the  practice,  pleadings, 
forms  and  proceedings  existing  at  the  time  in  like  causes  in 
the  courts  of  record  of  the  state  within  which  such  circuit  or 
district  courts  are  held,  any  rule  of  the  court  to  the  contrary 
notwithstanding."1  This  act  is  authorized  by  the  Constitution.3 
It  has  been  held  that  the  petition  need  not  be  made  in  the  name 
of  the  United  States,  but  may  be  in  the  name  of  the  Secretary  of 
the  Treasury  or  other  authorized  agent  of  the  United  States.3 
The  proceeding  is  on  the  common-law  side  of  the  court.4 

§  381.  »  25  St.  at  L.  ch.  728,  p.  357.  8  Re  Rugheimer,  36  Fed.  R.  369 ;  8.  c. 

2  Re  Rugheimer,  36  Fed.  R.  369 ;  Kohl    36  Fed.  R.  376. 
v.  U.  S.,  91  U.  S.  307  ;    Boom  Company         *  Re  Rugheimer,  36  Fed.  R.  376. 
v.  Patterson,  98  U.  S.  403,  400 ;  U.  S.  v. 
Jones,  109  U.  S.  513. 


566  REMOVAL   OF   CAUSES.  [CHAP.  XXIX. 


CHAPTER  XXIX. 

REMOVAL     OF     CAUSES. 

§  382.  Removal  of  Causes  from  one  Federal  Court  to  another.  — 
Suits  may  be  removed  from  a  District  Court  to  a  Circuit  Court 
of  the  United  States,  from  a  Circuit  Court  of  the  United  States 
to  another  such  Circuit  Court,  from  a  Territorial  court  to  a 
Circuit  Court  of  the  United  States,  and  from  a  State  court  to 
a  Circuit  Court  of  the  United  States.  When  the  judge  of  a 
District  Court  is  unable  to  hold  court  and  to  perform  the  duties 
of  his  office,  the  circuit  judge  or  justice  may,  upon  an  applica- 
tion in  writing  by  the  district  attorney  or  marshal  of  the  dis- 
trict, accompanied  by  satisfactory  evidence  of  such  disability, 
order  the  clerk  of  the  District  Court  to  certify  into  the  next 
term  of  the  Circuit  Court  to  be  held  in  that  district  all  pend- 
ing suits  and  processes.1  Upon  such  certification,  and  the  pub- 
lication of  such  order  in  a  newspaper  published  in  the  district 
at  least  thirty  days  before  the  session  of  the  Circuit  Court,  the 
Circuit  Court  proceeds  to  hear  and  determine  the  suits  and  pro- 
cesses so  certified.2  All  bonds  and  recognizances  taken  for  and 
returnable  into  such  District  Court  are  then  held  to  be  taken  for 
and  returnable  into  such  Circuit  Court,  and  to  have  the  same 
effect  therein  as  in  the  District  Court.3  The  death  of  a  district 
judge  does  not  authorize  such  an  order.4  After  such  an  order 
has  been  made,  the  clerk  continues  to  certify  to  the  Circuit 
Court  all  suits,  pleas,  and  processes,  civil  and  criminal,  there- 
after begun  in  the  District  Court ;  and  the  Circuit  Court  takes, 
hears,  and  determines  them  till  the  disability  is  removed,  when 
such  suits  and  proceedings  as  are  still  pending  and  undetermined 
must  be  remanded  by  the  Circuit  to  the  District  Court.5 

When  it  appears  in  any  civil  suit  in  a  Circuit  Court  that  all 
of  the  judges  thereof  who  are  competent  to  try  the  case  are  in 

§  382.  i  U.  S.  R.  S.  §  587.  4  Ex  parte  United  States,  1  Gall.  338. 

2  U.  S.  R.  S.  §  587.  6  U.  S.  R.  S.  §  588. 

8  U.  S.  R.  S.  §  687. 


§  3S3.]  REMOVAL  OF  CAUSES.  567 

any  way  interested  therein,  or  Lave  been  of  counsel  for  either 
party,  or  are  so  related  or  connected  with  either  party  as  to 
render  it,  in  the  opinion  of  the  court,  improper  for  them  to  sit 
upon  the  trial,  the  court  must  order  the  fact  to  be  entered  on 
the  record,  and  order  the  certification  of  the  cause  to  the  most 
convenient  Circuit  Court  in  the  next  adjoining  State,  or  in  the 
next  adjoining  circuit,  that  is,  ordinarily  the  nearest  Circuit 
Court  with  a  judge  competent  to  try  the  cause;  and  the  court 
to  which  the  cause  is  thus  certified  must  then  hear  and  deter- 
mine the  case,  unless  the  circuit  justice  or  judge  thereof  re- 
mands it.6 

When  a  Territory  is  admitted  as  a  State,  and  a  District  Court 
established  therein,  such  District  Court  takes  cognizance  of  and 
hears  and  determines  all  cases  pending  undetermined  in  the  Su- 
perior Court  of  such  Territory,  from  the  judgments  or  decrees  to 
be  rendered  in  which,  writs  of  error  could  have  been  sued  out 
or  appeals  taken  to  the  Supreme  Court  of  the  United  States.7 
All  records  of  proceedings  in  cases  pending  in  the  court  of  ap- 
peals of  such  a  Territory  at  the  time  of  its  admission,  and  all 
records  of  proceedings  in  which  judgments  or  decrees  had  been 
rendered  in  such  a  Territorial  court  before  that  time,  and  from 
which  writs  of  error  could  have  been  sued  out  or  appeals  taken, 
or  from  which  writs  of  error  had  been  taken,  or  appeals  taken 
and  prosecuted  to  the  Supreme  Court  of  the  United  States,  must 
be  transferred  to  and  deposited  in  the  District  Court  for  such 
new  State.8 

§  333.  Causes  which  may  be  removed  from  a  State  Court  to  a 
Circuit  Court  of  the  United  States.  —  By  §  2  of  the  Judiciary 
Act  of  1875,  as  amended  in  1887,  "  any  suit  of  a  civil  nature  at 
law  or  in  equity  arising  under  the  Constitution  or  laws  of  the 
United  States  or  treaties  made,  or  which  shall  be  made  under 
their  authority  of  which  the  Circuit  Courts  of  the  United 
States"  have  original  jurisdiction,  whether  now  pending  or 
hereafter  brought,  "  may  be  removed  by  the  defendant  or  de- 

6  U.  S.  R.  S.  §§  615-616 ;  Richardson  How.  571 ;  Ames  v.  Colorado  Central 
v.  Boston,  1  Curt.  250;  Supervisors  v.  R.  R.  Co.,  4  Dill.  251;  Gaffney  v.  Gil- 
Rogers,  7  Wall.  175 ;  Sawyer  v.  Oakman,     lette,  4  Dill.  264,  n. 

11  Blatchf.  65  ;  Stuart  v.  Laird,  1  Cranch,  8  u.  S.  R.  S.  §§  567,  568  ;  Benner  v. 

299.  Porter,  9  How.  235 ;  Forsyth   v.  U.  S.,  9 

7  U.  S.  R.  S.  §  569;  25  St.  at  L.  eh.  How.  571;  Express  Co.  v.  Kountze,  8 
180,  §  22,  p.  682 ;   Forsytli   v.   U.  S.,   9  Wall.  342. 


568  KEMOVAL   OF  CAUSES.  [CHAP.  XXIX. 

fendants  thereto  from  a  State  court  into  the  Circuit  Court  of 
the  United  States  for  the  proper  district."1  Any  other  suit  of  a 
civil  nature,  at  law  or  in  equity,  of  which  the  Circuit  Courts  of 
the  United  States  have  jurisdiction,  except  as  hereafter  stated, 
whether  now  pending  or  hereafter  brought,  can  be  removed  into 
the  Circuit  Court  of  the  United  States  for  the  proper  district 
only  by  the  defendant  or  defendants  therein  ;  and  not  by  them 
unless  they  are  non-residents  of  that  State  and  unite  in  the  appli- 
cation for  a  removal.2  A  resident  alien  defendant  cannot  thus 
remove  a  case.3  When  in  any  suit  of  a  civil  nature,  now  pend- 
ing or  hereafter  brought  in  a  State  court,  there  are  two  or  more 
separable  causes  of  action,  and  in  respect  to  one  of  them  all  the 
necessary  parties  on  one  side  are  citizens  of  different  States  from 
those  on  the  other,  either  one  or  more  of  the  defendants  inter- 
ested in  such  controversy  may  remove  the  suit  into  the  Circuit 
Court  of  the  United  States  for  the  proper  district.4  Such  re- 
moval may  be  had  by  any  defendant,  irrespective  of  his  residence 
or  citizenship.5  "  Where  a  suit  is  now  pending  or  may  be  here- 
after brought,  in  any  State  court,  in  which  there  is  a  contro- 
versy between  a  citizen  of  the  State  in  which  the  suit  is  brought 
and  a  citizen  of  another  State,  any  defendant,  being  such  citizen 
of  another  State,  may  remove  such  suit  into  the  Circuit  Court  of 
the  United  States  for  the  proper  district  at  any  time  before  the 
trial  thereof,  when  it  shall  be  made  to  appear  to  said  Circuit 
Court  that  from  prejudice  or  local  influence  he  will  not  be  able 
to  obtain  justice  in  such  State  court,  or  in  any  other  State  court 
to  which  the  said  defendant  may,  under  the  laws  of  the  State, 
have  the  right,  on  account  of  such  prejudice  or  local  influence  to 
remove  said  cause."  6  The  Revised  Statutes  provide  that  "  when 
any  civil  suit  or  criminal  prosecution  is  commenced  in  any 
court  of  a  State  against  any  officer  appointed  under  or  acting  by 
authority  of  any  revenue  law  of  the  United  States  now  or  here- 
after enacted,  or  against  any  person  acting  under  or  by  authority 

§  383.   >  24  St.  at  L.  ch.  373,  p.  552.  4  24  St.  at  L.  ch.  373,  p.  552 ;  Hyde  v. 

See  §§15,  17.  Ruble,   104   U.    S.   407,   409;    Fraser  v. 

2  24  St.  at  L.  ch.  373,  p.  552;  Fletcher  Jennison,  106  U.  S.  191,  194;  Ayres 
v.  Hamlet,  116  U.  S.  408;  Houston  &  T.C.  v.  Wiswall,  112  U.  S.  187,  192;  Barney 
R.  Co.  v.  Shirley,  111  U.  S.  358 ;  §§  15, 16,  v.  Latham,  103  U.  S.  205.  But  see  Speer 
18-24.  But  see  Mutual  Life  Ins.  Co.  v.  on  Removal  of  Causes,  §§  28-31. 
Champlin,  21  Fed.  R.  85;  Foster's  Fed-  5  Stanbrough  v.  Cook,  38  Fed.  R.  369. 
eral  Judiciarv  Acts,  26-29.  6  24  St.  at  L.  ch.  373,  p.  552. 

3  Walker  "v.  O'Neill,  38  Fed.  R.  374. 


§  383.]  REMOVAL    OF   CAUSES.  569 

of  any  such  officer,  on  account  of  any  act  done  under  color  of  his 
office  or  of  any  such  law,  or  on  account  of  any  right,  title,  or 
authority  claimed  by  such  officer  or  other  person  under  any  such 
law ;  or  is  commenced  against  any  person  holding  property  or 
estate  by  title  derived  from  any  such  officer,  and  affects  the 
validity  of  any  such  revenue  law  ;  or  is  commenced  against  any 
officer  of  the  United  States  or  other  person,  on  account  of  any 
act  done  under  the  provisions  of  Title  XXVI.,  '  The  Elective 
Franchise,'  or  on  account  of  any  right,  title  or  authority 
claimed  by  such  officer  or  other  person  under  any  of  the  said 
provisions,  the  said  suit  or  prosecution  may,  at  any  time  before 
the  trial  or  final  hearing  thereof,  be  removed  for  trial  into  the 
Circuit  Court  next  to  be  holden  in  the  district  where  the  same 
is  pending  upon  the  petition  of  such  defendant."  7  This  statute 
has  been  held  to  be  constitutional.8  In  an  action  against  any 
person  for  or  on  account  of  anything  done  by  him  while  an 
officer  of  either  House  of  Congress,  in  the  discharge  of  his  offi- 
cial duty,  the  district  attorney  of  the  United  States  for  the  dis- 
trict where  the  suit  is  brought  must  appear  for  such  officer  at 
his  request  ;  and  he  has  the  same  right  of  removal  as  a  revenue 
officer  in  the  cases  above  mentioned,  which  right  must  be  simi- 
larly exercised.9  "  When  any  civil  suit  or  criminal  prosecution 
is  commenced  in  any  State  court,  for  any  cause  whatsoever, 
against  an}r  person  who  is  denied  or  cannot  enforce  in  the  judi- 
cial tribunals  of  the  State,  or  in  the  part  of  the  State  where 
such  suit  or  prosecution  is  pending,  any  right  secured  to  him 
by  any  law  providing  for  the  equal  civil  rights  of  citizens  of 
the  United  States,  or  of  all  persons  within  the  jurisdiction  of 
the  United  States,  or  against  any  officer,  civil  or  military,  or 
other  person,  for  any  arrest  or  imprisonment  or  other  trespasses 
or  wrongs,  made  or  committed  by  virtue  of  or  under  color  of 
authority  derived  from  any  law  providing  for  equal  rights  as 
aforesaid,  or  for  refusing  to  do  any  act  on  the  ground  that  it 
would  be  inconsistent  with  such  law,  such  suit  or  prosecution 
may,  upon  the  petition  of  such  defendant,  filed  in  such  State 
court  at  any  time  before  the  trial  or  final  hearing  of  the  cause, 
stating  the  facts  and  verified  by  oath,  be  removed  for  trial,  into 

7  U.  S.  R.  S.  §  643 ;  Tennessee  v.  Day-         9  18  St.  at  L.  eh.  130,  §  8,  p.  401  ;  1 
is,  100  U.  S.  257.    See  §  388.  Supp.  U.  S.  R.  S.  p.  1G5. 

8  Tennessee  v.  Davis,  100  U.  S.  257. 


570 


REMOVAL   OF   CAUSES. 


[CHAP.  XXIX. 


the  next  Circuit  Court  to  be  held  in  the  district  where  it  is 
pending."  10 

A  habeas  corpus  proceeding  cannot,  it  seems,  be  removed  from 
a  State  to  a  Federal  court.11  A  defendant  may  remove  a  cause 
into  a  district  where  he  does  not  reside,  if  the  case  is  pending  in 
a  State  court  within  that  district.12  A  case  of  which  the  Federal 
court  could  not  otherwise  take  jurisdiction  cannot  be  removed 
by  consent.13  An  agreement  by  a  corporation  not  to  remove  into 
a  Federal  court  any  suit  brought  against  it  within  a  State  is 
void.14  A  State,  however,  has  the  power  to  exclude  from  its 
limits  any  corporation  not  engaged  in  interstate  or  international 
commerce  ;  and  it  seems  that  the  courts  will  not  examine  into 
the  reasons  for  such  exclusion,  provided  the  statute  under 
which  it  is  made  is  constitutional.15  A  stipulation  not  to  re- 
move a  specified  suit  into  a  Federal  court  has  been  held  to  be 
valid.16 

§  384.  Separable  Controversies.  —  To  entitle  a  defendant  to  a 
removal  on  account  of  the  separability  of  a  controversy  from  the 
rest  of  the  case,  there  must  exist  a  separate  cause  of  action  on 
which  a  separate  suit  could  be  brought  and  complete  relief  af- 
forded distinct  from  the  rest  of  the  case,  and  of  which  all  the 
parties  on  one  side  are  citizens  of  different  States  from  all  the 
parties  on  the  other.1  The  case  must  be  separable  into  parts, 
so  that  in  one  of  the  parts  a  controversy  will  be  presented 
wholly  between  citizens  of  different  States,  which  can  be  fully 
determined  without  the  presence  of  the  other  parties  to  the  suit.2 


»  U.  S.  R.  S.  §  641. 
"  Kurtz  v.  Moffitt,  115  U.  S.  487 ;  Snow 
i>.  United  States,  118  U.  S.  346,  354. 

12  Gavin  v.  Vance,  33  Fed.  R.  84,  92 ; 
Swain  v.  Boylston  Ins.  Co.,  37  Fed.  R. 
766 ;  Wilson  v.  W.  U.  Tel.  Co.,  34  Fed.  R. 
561  ;  Kansas  City  &  T.  R,  Co.  v.  Inter- 
state Lumber  Co.,  37  Fed.  R.  3;  Burck 
v.  Taylor,  39  Fed.  R.  581. 

13  People's  Bank  v.  Calhoun,  102  U.  S. 
256. 

14  Insurance  Co.  v.  Morse,  20  Wall.  445 ; 
Barron  v.  Burnside,  121  U.  S.  186. 

15  Paul  v.  Virginia,  8  Wall.  168 ;  Doyle 
v.  Continental  Ins.  Co.,  94  U.  S.  535; 
Gloucester  Ferry  Co.  v.  Pennsylvania,  114 
U.  S.  196  ;  Phila.  Fire  Ass'n  v.  New  York, 
119  U.  S.  110;  Barron   v.  Burnside,  121 


U.  S.  186  ;  Chicago  M.  &  St.  P.  Ry.  Co.i>. 
Becker,  32  Fed.  R.  849. 

1(i  Hanover  National  Bank  v.  Smith, 
13  Blatchf.  224. 

§  384.  i  Hyde  v.  Ruble,  104  U.  S.  407, 
409;  Fraser  v.  Jennison,  106  U.  S.  191, 
194  ;  Ayres  v.  Wisvvall,  112  U.  S.  187, 192 ; 
Des  Moines  Nav.  Co.  v.  Iowa  Homestead 
Co.,  123  U.  S.  552  ;  Boyd  v.  Gill,  19  Fed.  R. 
145;  Vinal  v.  Continental  C.  &  I.  Co.,  34 
Fed  R.  228;  Wabash,  St.  L.  &  P.  Ry.  Co. 
v.  Central  Trust  Co,  23  Fed.  R.  513; 
Count}'  Court  of  Taylor  County  v.  Balto. 
&  O.  R.  R.  Co.,  35  Fed.  R.  161. 

2  Fraser  v.  Jennison,  106  U.  S.  191, 
194  ;  Ayres  v.  Wiswall,  112  U.  S.  187, 
1A2.  But  see  Sp.er  on  Removal  of 
Causes,  §§  28-31. 


§  384.]  SEPARABLE  CONTROVERSIES.  571 

An  intervenor  may  thus  remove  a  cause.3  "  Whatever  might 
be  the  rule  if  an  intervenor  presented  some  new  and  indepen- 
dent interest  or  question,  when  he  simply  comes  in  to  carry  on 
the  litigation  over  the  same  issues  and  questions  he  acquires  no 
right  of  removal  different  from  that  possessed  by  him  who  had 
been  carrying  on  the  litigation  as  his  representative."4  A  con- 
troversy is  not  separable  when  the  defendant,  who  would  other- 
wise be  entitled  to  remove  the  suit,  is  charged  as  jointly  liable 
with  another  defendant,  who  is  a  fellow-citizen  of  the  plaintiff.5 
Such  a  case  cannot  be  removed  by  the  defendant  whose  citizen- 
ship is  different  from  that. of  the  plaintiff;  even  if  the  alleged 
cause  of  action  is  both  joint  and  several,  whether  in  tort  or  con- 
tract, if  the  plaintiff  has  sued  the  defendants  jointly  ;6  nor  if  the 
defendants  have  filed  separate  answers;7  nor  if  one  of  them  has 
made  a  default;8  nor  if  judgment  has  been  entered  against  one 
of  them  before  the  other  was  served  with  process;9  nor  if  one 
has  not  been  served,  and  has  not  appeared  when  the  other  seeks 
to  remove  the  cause.10  A  case  is  not  removable  because  a  color- 
able assignment  has  been  made  to  give  a  State  court  exclusive 
jurisdiction.11  If  it  is  claimed  that  some  of  the  defendants  were 
improperly  made  parties  for  the  sake  of  preventing  a  removal, 
that  fact  must  be  proven  to  the  Circuit  Court  by  the  peti- 
tioner,12  and   then  it  might  justify  a  removal.13     The  removal 

3  Hack  v.  Chicago  &  G.  S.  Ry.  Co.,  23  U.  S.  502 ;  Weller  v.  J.  B.  Pace  Tobacco 
Fed.  R.  356.  Co.,  32  Fed.  R.  860;  Anderson  v.  Apple- 

4  Brewer,  J.,  in  Hakes   v.  Burns,  40  ton,   32   Fed.  R.  855 ;    Wilson  v.    Union 
Fed.  R.  33,  34.  Saving  Ass'n,  30  Fed.  R.  521 ;  Shaver 

5  Hyde  v.  Ruble,  104  U.  S.  407 ;  Ayres  v.  Hardin,  30  Fed.  R.  801. 

p.  "Wiswall,  112  U.  S.  187,  193  ;  Louisville  1  Pirie  v.  Tvedt,  115  U.  S.  41 ;  Sloane 

&  N.  II.  R.  v.  Ide,  114  U.  S.  52  ;  Putnam  v.  v.  Anderson,  117  U.  S.  275,  278. 

Ingraham,  114  U.  S.  57  ;  St.  Louis  &  S.  F.  8  putnam  v.  Ingrahara,  114  U.  S.  57  ; 

R.R.  v.Wilson,  114  U.S.  60;  Pirie  v.  Tvedt,  Brooks  «?.  Clark,  119  U.  S.  502. 

115  U.  S.  41 ;  Starin  v.  New  York,  115  U.  9  Brooks  v.  Clark,  119  U.  S.  502. 

S.248;  Sloane  U.Anderson,  117  U.S.  275;  10  Ames  v.  Chicago,  S.  F.  &  C.  Ry.  Co., 

Fidelity  Ins.  Co.  v.  Huntington,  117  U.  S.  39  Fed.  R.  881. 

280;  Core  v.  Vinal,  117  U.  S.  347;   Ply-  «  Waite,   C.  J.,  in  Leather  Manufac- 

mouth  Mining  Co.  v.  Amador  Canal  Co.,  turers'  Bank   v.  Cooper,  120  U.  S.  778, 

118  U.  S.  204;   Little  v.  Giles,  118  U.  S.  781. 

590;  Brooks  v.  Clark,  119  U.  S.  502.  '2  Plymouth    Mining   Co.   v.   Amador 

6  Louisville  &  N.  R.  R.  Co.  v.  Ide,  114  Canal   Co.,  118  U.  S.  264,  270;   Leather 

U.  S.  52  ;  St.  Louis  &  S.  F.  R.  R.  v.  Wil-  Manufacturers' Bank  v.  Cooper,  120  U.  S. 

son,  114  U.  S.  60;  Pirie   v.  Tvedt,  115  778,781. 

U.  S.  41  ;  Starin  v.  New  York,  115  U.  S.  13  Collins   v.  Wellington,    81    Fed.  R. 

248;  Plymouth   Mining   Co.  v.  Amador  244.     See  Hax  v.  Caspar,  81  Fed.  11.499, 

Canal  Co.,  118  U.  S.  264;  Little  v.  Giles,  501 ;  Nelson   v.    Hennessey,   33   Fed.   R. 

118   U.  S.  596;    Brooks  v.   Clark,    119  113. 


572  REMOVAL   OF   CAUSES.  [CHAP.  XXIX. 

takes  the  entire  suit,  not  merely  the  separate  controversy,  into 
the  Federal  court.14  Section  737  of  the  Revised  Statutes  does 
not  affect  the  removal  of  causes.15 

§  385.  Practice  on  Removal  in  General.  —  The  method  of  re- 
moving causes  from  State  courts  to  Circuit  Courts  of  the  United 
States,  on  grounds  other  than  prejudice  or  local  influence,  or  in 
controversies  between  citizens  of  the  same  State  claiming  land 
under  grants  of  different  States,  is  as  follows:  The  defendant 
must  file  in  the  State  court,  at  or  before  the  time  when  he  is 
obliged  to  answer  or  plead  to  the  declaration  or  complaint,  a 
petition  for  the  removal  of  the  cause  from  the  State  court  to  the 
Circuit  Court  held  in  the  district  where  the  suit  is  pending.  He 
must  file  therewith  a  bond,  with  a  good  and  sufficient  surety,  for 
his  entering  in  the  Circuit  Court,  at  the  first  day  of  its  next 
session,  a  copy  of  the  record  in  the  suit,  and  for  paying  all  costs 
that  may  be  awarded  in  the  Circuit  Court,  if  that  court  shall 
hold  that  the  suit  was  improperly  removed  ;  and  also  for  appear- 
ing and  entering  special  bail  in  the  suit,  if  special  bail  was  origi- 
nally requisite  therein.  It  is  then  the  duty  of  the  State  court  to 
accept  the  petition  and  bond,  if  correct  in  form,  and  to  proceed 
no  further  in  the  suit.  When  the  copy  of  the  record  is  subse- 
quently filed  in  time,  the  cause  proceeds  in  the  Circuit  Court  in 
the  same  manner  as  if  originally  commenced  there.1 

The  petition  must  state  the  facts  which  warrant  the  removal 
and  give  the  Circuit  Court  jurisdiction.2  These  facts  should  be 
stated  positively,  not  on  information  and  belief.3  The  jurisdic- 
tional facts  should  be  stated  specifically.4  A  general  allegation 
in  the  language  of  the  statute  is  insufficient.5  When  the  right  to 
remove  rests  upon  a  difference  in  citizenship,  the  citizenship  of 
each  of  the  parties  should  be  alleged.6  It  is  insufficient  to  state 
their  residence.7  The  allegation  "  that  said  plaintiffs  as  such 
executors  are  citizens  of  the  State  of  New  York  "  was  held  in- 

M  Barney  v.  Latham,  103  U.  S.  205.  96  U.  S.  199 ;  Grace  v.  American  Central 

15  See  §  50.  Ins.  Co.,  109  U.  S.  278. 

§  385.   !  Act  of  March  3,  1875,  §2(18  5  Gold  Washing  &  Water  Co.  v.  Keyes, 

St.  at  L.  ch.  137,  p.  470),  as  amended  by  96  U.  S.  199  ;  Grace  v.  American  Central 

act  of  March  3, 1837  (24  St.  at  L.  ch.  373,  Ins.  Co  ,  109  U.  S.  278;    Carson  v.  Dun- 

p.  552).  ham,  121  U.  S.  421. 

2  Railway  Co.  v.  Ramsey,  22  Wall.  322,  6  Grace  v.  American  Central  Ins.  Co., 
328 ;  Grace  v.  American  Central  Ins.  Co.,  109  U.  S.  278. 

109  U.  S.  278.  7  Grace  v.  American  Central  Ins.  Co., 

3  Wolff  v.  Archibald,  14  Fed.  R.  369.       109  U.  S.  278. 

4  Gold  Washing  &  Water  Co.  v.  Keyes, 


§  385.]  PRACTICE    OX   REMOVAL   IN   GENERAL.  573 

sufficient.8  The  petition  in  all  cases  not  removed  on  account  of 
prejudice  or  local  influence  should  show  that  the  difference  in 
citizenship  existed  both  at  the  time  of  the  commencement  of  the 
suit  and  at  the  time  of  the  application  for  removal.9  If,  how- 
ever, either  or  Loth  of  those  facts  are  alleged  with  sufficient 
precision  in  the  pleadings,  they  need  not  be  restated  in  the  peti- 
tion.10 So,  when  a  removal  is  claimed  upon  the  ground  that  the 
suit  arises  under  the  Constitution  and  laws  of  the  United  States, 
the  petition  must  state  the  facts  showing  that  such  is  the  case, 
unless  those  facts  appear  in  pleadings  previously  filed  or  served, 
when  such  allegations  may  be  incorporated  into  the  petition  by 
reference.11  The  petition  should  also  show  that  the  matter  in 
dispute  is  the  jurisdictional  amount,  unless  this  already  appears 
from  the  pleadings.12  The  petition  need  not  be  verified.13  It 
may  be  signed  either  by  the  petitioner  or  by  his  attorney  in  fact 
or  at  law.14 

The  bond  must  name  a  specific  sum  as  the  penalty.  If  the 
place  for  the  amount  of  the  penalty  is  left  blank,  it  is  insuffi- 
cient.15 A  penalty  of  $1,000  will  ordinarily  be  sufficient  when 
the  defendant  has  not  been  held  to  bail.16  If  the  condition  is 
simply  that  the  petitioner  will  file  "  copies  of  all  process,"  it  is 
insufficient.17  The  following  condition  was  held  to  be  sufficient  : 
"  If  the  said  petitioners  shall  enter  in  the  said  circuit  court  of 
the  United  States,  on  the  first  day  of  its  next  session,  a  cop)'  of 
the  record  in  said  suit,  and  shall  well  and  truly  pay  all  costs  that 
may  be  awarded  by  said  circuit  court  of  the  United  States,  if 
said  court  shall  hold  that  said  suit  was  wrongfully  or  improperly 
removed  thereto,  and  do  or  cause  to  be  done  such  other  and  ap- 
propriate acts  as,  by  the  acts  of  Congress  approved  March  3, 

8  Amory  v.  Amory,  95  U.  S.  186.  But  13  Sweeney  v.  Coffin,  1  Dill.  73  ;  Allen 
see  Cooke  v.  Seligraan,  7  Fed.  R.  263.  v.  Ryerson,  2  Dill.  501  ;  Ilouser  v.  Clay- 

9  Gibson  v.  Bruce,  108  U.  S.  561 ;  H.  &  ton,  3  Woods,  273.  See  Removal  Cases, 
T.  R.  R  Co.  v.  Shirley,  111  U.  S.  358;  100  U.  S.  457,  471. 

Akers  v.  Akers,  117  U.  S.  197;  Stevens  H  Dennis  v.  Alachua  County,  3  Woods, 

v.  Nichols,  130  U.  S.  230;  Jackson  v.  Al-  683;  Wormser  v.  Dahlman,  16  Blatuhf. 

ten,  132  U.  S.  27.  319.     See  also  Removal  Cases,  100  U.  S. 

>«  Bondurant  v.  Watson,  103  U.  S.  281  ;  457. 

Steamship  Co.  v.  Tugman,  106  U.  S  118.  15  Burdick  v.  Hale,  7  Biss.  96;  Austin 

11  Gold  Washing  &  Water  Co.  v.  Keyes,  v.  Gagan,  39  Fed.  R.  620. 

96  U.  S.  199,  204  ;  Trafton  v.  Nougues,  4         10  Blanchard  v.  Dwight,  12  Wend.  (N. 

Sawyer,    178;    Carson   v.   Dunham,   121     Y.)  192. 

U.  S.  421.  «  Burdick  v.  Hale,  7  Biss.  96. 

12  U.  S.  v.  Pratt  Coal  &  Coke  Co.,  18 
Fed.  R.  708. 


574  EEMOVAL     OF     CAUSES.  [CHAP.  XXIX. 

1875,  and  other  acts  of  Congress,  are  required  to  be  done  upon 
the  removal  of  a  suit  into  the  United  States  circuit  court  from 
a  State  court."  18  When  special  bail  was  not  originally  requisite 
in  the  action,  the  bond  need  contain  no  condition  for  the  entry 
of  such  bail  in  the  Federal  court.19  The  bond  must  provide  for 
the  payment  of  costs  in  case  of  a  remand.20  The  bond  need  not 
be  executed  by  the  petitioner,  if  it  have  a  principal  and  a  suffi- 
cient surety.21  When  the  petitioner  is  named  as  principal,  it 
seems  that  it  may  be  executed  in  his  name  by  his  attorney-at- 
law.22  It  seems  that  the  bond  must  be  sealed  by  the  parties 
who  execute  it,23  but  that  a  scrawl  seal  without  wax,  or  an  im- 
pression on  the  paper,  will  be  sufficient.24  A  defect  in  the  bond 
may  be  cured  by  amendment,  with  leave  of  the  court,  or  a  new 
bond  may  be  filed,  if  leave  to  do  so  be  obtained.25  It  is  cus- 
tomary to  procure  the  approval  of  the  bond  by  the  State  court. 
Whether  the  Federal  court  has  the  power  to  approve  the  bond 
after  the  State  court  has  disapproved  it,  or  to  disapprove  it 
after  the  State  court's  approval,  is  unsettled.26  It  has  been 
held  at  circuit  that  "  the  want  of  acknowledgment  or  proof 
of  the  execution  of  the  bond  was  a  matter  of  practice  for 
the  State  court  to  pass  upon,  and  it  will  not  be  reviewed  by 
this  court  after  the  State  court  has  accepted  the  bond."27  Such 
an  objection  cannot  be  raised  for  the  first  time  in  the  Supreme 
Court.28 

No  order  of  the  State  court  is  essential  to  the  removal.29     It 
is  the  safer  practice  to  present  both  the  petition  and  the  bond 

18  Cooke  v.  Seligman,  7  Fed.  R.  263.  Woods,  683,  688 ;  Aycrs  v.  Watson,  113 

19  Burck  v.  Taylor,  39  Fed.  R.  581.  U.  S.  504,  598;  Coburn  v.  Cedar  Valley 

20  Sheldrick  v.  Cockcroft,  27  Fed.  R.     L.  &  C.  Co.,  25  Fed.  R.  791. 

579;  Webber  v.  Bishop,  13  Fed.  R.  49;  2ii  Compare  Osgood  v.  Chicago,  D.  &  V. 

Torrey  v.  Grant  Locomotive  Works,  14  R.  R.  Co.,  6  Biss.  330 ;  Dennis  v.  County  of 

Blatchf.  2C9.     But  see  Dennis  v.  County  Alachua,  3  Woods,  683  ;   Cooke  v.  Selig- 

of  Alachua,  3  Woods,  683,  688 ;  Deford  v.  man,  7  Fed.  R.  203  ;  Fisk  v.  U.  P.  R.  R.  Co., 

Mehaffy,  13  Fed.  R.  481 ;  and  §  373.  6  Blatchf.  302  ;  Taylor  v.  Shew,  54  N.  Y. 

21  Stevens  v.  Richardson,  20  Blatchf.  75;  Mix  v.  Andes  Ins.  Co.,  74  N.  Y.  53; 
53  ;  s.  c.  9  Fed.  R.  191 ;  Public  Grain  &  Stone  v.  South  Carolina,  117  U.  S.  430  ; 
Stock  Exchange  v.  W.  U.  Tel.  Co.,  16  Carson  v.  Dunham,  121  U.  S.4-J1;  Shedd 
Fed.  R.  289 ;  s.  c.  11  Biss.  508.  v.  Fuller,  36  Fed.  R.  609  ;  Wilson  v.  W.  U. 

22  Dennis    v.   County    of    Alachua,    3  Tel.  Co.,  34  Fed.  R.  561. 

Woods,  683,  68".  27  Cooke  v.  Seligman,  7  Fed.  R.  263, 

23  U.  S.  v.  Linn,  15  Tet.  220;  Speer     269,  per  Blatchf ord,  J. 

on  Removal  of  Causes,  p.  119.  28  Removal  Cases,  100  U.  S.  457. 

24  U.  S.  v.  Stephenson,  1  McLean,  462;  »  Kern  v.  Huidekoper,  103  U.  S.  485  ; 
Speer  on  Removal  of  Causes,  p.  119.  Insurance  Co.  v.  Dunn,  19  Wall.  214. 

25  Dennis    v.    County   of   Alachua,    3 


§  386.]        REMOVAL   FOR   PREJUDICE   OR   LOCAL   INFLUENCE.  575 

to  the  State  court,  not  merely  to  file  them  in  the  clerk's 
office.30  The  petition  and  bond  may  be  filed  in  vacation.31 
If  the  defendant's  time  to  plead  or  answer  has  been  extended 
by  consent  or  order,  it  seems  that  the  time  to  remove  is  like- 
wise extended.32  When,  at  the  time  of  the  defendant's  pleading, 
the  value  of  the  matter  in  dispute  was  below  the  jurisdictional 
amount,  and  by  amendment  it  was  subsequently  increased,  it 
was  held  that  a  removal  might  then  be  made.33  It  has  been 
held  that  a  removal  may  be  made  after  a  motion  to  take  the 
bill  off  the  file  had  been  denied,34  and  after  a  demurrer  had 
been  overruled,35  and  even  after  answer,36  provided  that  the 
time  allowed  the  defendant  to  plead  had  not  expired.  It  has 
been  held  that  where  there  are  two  defendants  and  but  one  con- 
troversy, and  the  time  for  removal  has  expired  as  to  one  defend- 
ant, it  is  too  late  for  the  other  defendant  to  remove  the  cause, 
although  he  had  never  been  previously  served.37 

§  386.  Practice  on  Removal  for  Prejudice  or  Local  Influence.  — 
The  practice  on  the  removal  of  cases  for  prejudice  or  local 
influence  under  the  present  statute  is  not  yet  authoritatively 
adjudicated.  The  material  parts  of  the  Act  of  1887,  as  amended 
in  1888,  are  as  follows  :  — 

"  And  where  a  suit  is  now  pending,  or  may  be  hereafter 
brought,  in  any  State  court,  in  which  there  is  a  controversy 
between  a  citizen  of  the  Stale  in  which  the  suit  is  brought  and  a 
citizen  of  another  State,  any  defendant,  being  such  citizen  of 
another  State,  may  remove  such  suit  into  the  circuit  court  of  the 
United  States  for  the  proper  district,  at  any  time  before  the  trial 
thereof,  when  it  shall  be  made  to  appear  to  said  circuit  court  that 
from  prejudice  or  local  influence  he  will  not  be  able  to  obtain  jus- 
tice in  such  State  court,  or  in  any  other  State  court  to  which  the 
said  defendant  may,  under  the  laws  of  the  State,  have  the  right, 

80  Shedd  v.  Fuller,  36  Fed   R.  609.  83  Huskins  v.  Cincinnati,  N.  O.  &  T.  P. 

31  Osgood  v.  Chicago,  D.  &  V.  R.  R.  Ry.  Co.,  37  Fed.  R.  504. 

Co.,6Biss.  330.     But  see  Shedd  v.  Fuller,  «  Tennessee  Coal,  L.  &  T.  B.  Co.  v. 

36  Fed.  R.  609.  Waller,  37  Fed.  R.  545. 

82  Winberg  v.  Berkeley    Co.  R.   R.  &  35  Tennessee  Coal,  L.  &  T.  B.   Co.  r. 

Lumber  Co.,  29  Fed.  R,  721.      But  see  Waller,  37  Fed.  R.  545. 

Pullman  Palace   Car    Co.  v.  Speck,    113  86  Gavin  v.  Vance.  33  Fed.  R.  84,92. 

U.  S.  84  ;  Murray  v.  Holden,2  Fed.  R.  740;  See  Rurck  v.  Taylor,  39  Fed.  R.  681 

Dixon  v.  W.  U.  Tel.  Co.,  38  Fed.  R.  377.  37  Fletcher  v.  Hamlet,  116  Q.  S.  408; 

See  also  McEeen  v.  Ives,  35  Fed.  R.  801  ;  Houston  &  T.  C  R.  R.  To.  ,-.  Shirley,  111 

Werlekind  v.  Southern  Pac.  Co.,  36  Fed.  U.  S.  358.     But  see  Mutual  Life  Ins.  Co. 

R-  279.  r.  Champlin,  21  Fed.  R.  85. 


576  EEMOVAL   OF   CAUSES.  [CHAP.  XXIX. 

on  account  of  such  prejudice  or  local  influence,  to  remove  said 
cause  :  Provided,  That  if  it  further  appear  that  said  suit  can  be 
fully  and  justly  determined  as  to  the  other  defendants  in  the 
State  court,  without  being  affected  by  such  prejudice  or  local 
influence,  and  that  no  party  to  the  suit  will  be  prejudiced  by  a 
separation  of  the  parties,  said  circuit  court  may  direct  the  suit 
to  be  remanded,  so  far  as  relates  to  such  other  defendants,  to  the 
State  court,  to  be  proceeded  with  therein.  At  any  time  before 
the  trial  of  any  suit  which  is  now  pending  in  any  circuit  court, 
or  may  hereafter  be  entered  therein,  and  which  has  been  re- 
moved to  said  court  from  a  State  court  on  the  affidavit  of  any 
party  plaintiff  that  he  had  reason  to  believe  and  did  believe 
that,  from  prejudice  or  local  influence,  he  was  unable  to  obtain 
justice  in  said  State  court,  the  circuit  court  shall,  on  application 
of  the  other  party,  examine  into  the  truth  of  said  affidavit  and 
the  grounds  thereof,  and,  unless  it  shall  appear  to  the  satisfaction 
of  said  court  that  said  party  will  not  be  able  to  obtain  justice  in 
such  State  court,  it  shall  cause  the  same  to  be  remanded  thereto. 
Whenever  any  cause  shall  be  removed  from  any  State  court  into 
any  circuit  court  of  the  United  States,  and  the  circuit  court 
shall  decide  that  the  cause  was  improperly  removed,  and  order 
the  same  to  be  remanded  to  the  State  court  from  whence  it 
came,  such  remand  shall  be  immediately  carried  into  execution, 
and  no  appeal  or  writ  of  error  from  the  decision  of  the  circuit 
court  so  remanding  such  cause  shall  be  allowed."  1 

The  previous  statute  on  the  subject,  so  far  as  material,  was  as 
follows  :  "  Any  suit  commenced  in  any  State  court,  wherein  the 
amount  in  dispute,  exclusive  of  costs,  exceeds  the  sum  or  value 
of  five  hundred  dollars,  to  be  made  to  appear  to  the  satisfaction  of 
said  Court,  may  be  removed,  for  trial,  into  the  Circuit  Court,  for 
the  district  where  such  suit  is  pending,  next  to  be  held  after 
the  filing  of  the  petition  for  such  removal  hereinafter  mentioned, 
in  the  cases  and  in  the  manner  stated  in  this  section.  .  .  . 
When  a  suit  is  between  a  citizen  of  the  State  in  which  it  is 
brought  and  a  citizen  of  another  State,  it  may  be  so  removed  on 
the  petition  of  the  latter,  whether  he  be  plaintiff  or  defendant, 
filed  at  any  time  before  the  trial  or  final  hearing  suit,  if,  before  or 
at  the  time  of  filing  said  petition,  he  makes  and  files  in  said  State 

§  386.  »  18  St.  at  L.  ch.  137,  p.  470  ed  by  24  St.  at  L.  ch.  373,  p.  552;  and  25 
(1st  Suppl.  U.  S.  R.  S.  173),  §  2,  as  amend-    St.  at  L.  ch.  86G,  p.  433. 


§  386.]   REMOVAL  FOR  PREJUDICE  OR  LOCAL  INFLUENCE.      577 

court  an  affidavit  stating  that  he  has  reason  to  believe  and  does 
believe  that  from  prejudice  or  local  influence,  he  will  not  be  able 
to  obtain  justice  in  such  State  Court. 

"In  order  to  such  removal,  the  petitioner  in  the  cases  aforesaid 
must,  at  the  time  of  filing  his  petition  therefor,  offer  in  said  State 
court  good  and  sufficient  surety  for  his  entering  in  such  circuit 
court,  on  the  first  day  of  its  session,  copies  of  said  process  against 
him,  and  of  all  pleadings,  depositions,  testimony,  and  other  pro- 
ceedings in  the  cause  or  in  said  cases  where  a  citizen  of  the  State 
in  which  the  suit  is  brought  is  a  defendant,  copies  of  all  process, 
pleadings,  depositions,  testimony,  and  other  proceedings  in  the 
cause  concerning  or  affecting  the  petitioner,  and  also  for  his 
there  appearing  and  entering  special  bail  in  the  cause,  if  special 
bail  was  originally  requisite  therein.  It  shall  thereupon  be  the 
duty  of  the  State  court  to  accept  the  surety  and  to  proceed  no 
farther  in  the  cause  against  the  petitioner,  and  any  bail  that  shall 
have  been  originally  taken  shall  be  discharged. 

"  When  the  said  copies  are  entered  as  aforesaid  in  the  circuit 
court  the  cause  shall  then  proceed  in  the  same  manner  as  if  it 
had  been  brought  there  by  original  process  ;  and  the  copies  of 
pleadings  shall  have  the  same  force  and  effect,  in  every  respect 
and  for  every  purpose,  as  the  original  pleadings  would  have  had 
by  the  laws  and  practice  of  the  courts  of  such  State  if  the  cause 
had  remained  in  the  State  court."2 

How  much,  if  any,  of  this  part  of  the  Revised  Statutes  is  still 
in  force  and  how  much  has  been  repealed  by  implication,  is 
under  the  authorities  a  very  doubtful  question.3  The  prudent 
practitioner  will,  when  seeking  to  remove  a  case  for  prejudice  or 
local  influence,  comply  with  the  provisions  of  the  Revised  Stat- 
utes, and  also  with  the  practice  in  ordinary  removal  cases.  It 
seems  that  the  petition  should  be  presented  to  the  Federal  court, 
and  a  certified  copy  of  the  same,  with  the  proceedings  thereon, 
filed  in  the  State  court.4     By  the  practice  before  the  Act  of  1SS7, 

2  U.  S.  R.  S.  §  639.  nati,N.O.&T.P.Ry.  Co.,  37  Fed.  R."  604; 

8  See  Foster's  Federal  Judiciary  Acts,  Amy  v.  Manning,  38  Fed.  R.  530;  Robi- 

pp.  33,56-58;  Fisk  v.  Henarie,  32  Fed.  R.  Bon  v.  Hardy,  38  Fed.  R.  40  ;  Malone  v. 

417;    Hills  ».  Richmond  &  I).  R.  R.  Co.,  Richmond  &  D.  R.  Co.,  35  Fed.  R.  025, 

33  Fed.  R.  81;   Short  v.  Chicago,  M.   &  628,   629;  Neale   v.   Foster,   31    Fed.   R. 

St.  P.  R.  R.  Co.,  33  Fed.  R.  114;  s.  c.  34  53,  55. 

Fed.  R.  225 ;  Whelan  v.  N.  Y.  L.  E.  &  W.  4  Malone  p.  Richmond  &  D.  R.  R.  Co., 

R.  R.,  35  Fed.  R.   849;    Southworth  v.  35  Fed.  R.  625;  Kaitel  v.  Wylie,  38  Fed. 

Hoi  1,  36  Fed.  R.  451  ;   Huskins  v.  Cincin-  R.  865. 

37 


578  KEMOVAL    OF   CAUSES.  [CHAP.  XXIX. 

a  cause  might  be  removed  for  prejudice  or  local  influence,  upon 
the  filing  by  the  defendant  with  his  petition  and  bond  of  an  affi- 
davit "  that  he  has  reason  to  believe  that  from  prejudice  and  local 
influence  he  will  not  be  able  to  obtain  justice  in  the  State  court 
in  which  the  action  is  brought  or  in  any  other  State  court  to 
which  he  may  be  able  to  remove  the  action."5  In  the  Fifth, 
Sixth,  and  Ninth  Circuits,  it  has  been  held  that  a  defendant  can 
now  remove  a  cause  on  such  an  affidavit,  and  that  the  truth  of  the 
affidavit  cannot  be  disputed.6  In  the  Second,  Fourth,  Seventh, 
and  Eighth  Circuits,  it  has  been  held,  that  the  defendant  must 
state  in  his  affidavits  the  facts  which  show  the  existence  of  the 
prejudice  and  local  influence;7  and  it  would  seem  to  follow  that 
in  those  circuits  the  opposite  party  is  entitled  to  notice  of  the 
application,  and  that  a  trial  of  fact  as  to  the  existence  of  the 
prejudice  or  local  influence  will  be  had  before  the  court.8  It 
has  been  held,  that  notice  served  three  days  before  the  hearing 
is  insufficient ;  and  in  that  case  two  weeks'  additional  time  was 
given  to  the  party  opposing  the  removal.9  It  seems  that  the 
affidavit  should  be  made  by  the  party  seeking  the  removal, 
not  by  his  attorney.10  When  the  affidavit  is  made  in  another 
State  it  must  be  attested  so  as  to  make  it  admissible  according 
to  the  practice  of  the  court  where  the  suit  is  pending  before  the 
removal.11  The  clause  divesting  the  court  of  jurisdiction  over 
pending  causes  was  held  to  be  constitutional,  although  the  re- 
moving party  had  expended  a  considerable  sum  of  money 
in  taking  testimony  in  the  Circuit  Court,  after  the  removal 
and  before  the  Act  of  1887,   which  testimony  was  not  admis- 

5  U.  S.  R.  S.  §  639.  Fed.  R.  536,  Lacombe,  J. ;  s.  c.  38  Fed.  R. 

6  Neale  v.  Foster,  31  Fed.  R.  53,  55,  868,  Wallace,  J. ;  Dennison  v.  Brown,  38 
Deady,  J. ;  Fisk  v.  Henarie,  32  Fed.  R.  Fed.  R.  535,  Wallace,  J.  See  Speer  on 
417,  Deady,  J. ;  s.  c.  35  Fed.  R.  230,  Removal  of  Causes,  §  8,  ch.  vi. 
Deady,  J. ;  Hills  v.  Richmond  &  D.  R.  R.  8  Malone  v.  Richmond  &  D.  R.  R.  Co., 
Co.,  33  Fed  R.  81,  Newman,  J. ;  Whelan  35  Fed.  R.  625 ;  Robison  v.  Hardy,  38 
v.  N.  Y.  L.  E.  &  W.  R.  R.  Co.,  35  Fed.  R.  Fed.  R.  49 ;  Short  v.  C.  M.  &  St.  P.  R.  R. 
849,  Jackson,  J. ;  Huskins  v.  Cincinnati,  Co.,  33  Fed.  R.  114;  s.  c.  34  Fed.  R.  225  ; 
N.  0.  &  T.  P.  Ry.  Co.,  37  Fed.  R.  504,  Carson  &  Rand  Lumber  Co.  v.  Holtzclaw, 
Key,  J.  39  Fed.  R.  578 ;  s.  c.  39  Fed.  R.  885. 

7  Short  v.  C.  M.  &  St.  P.  R.  R.  Co.,  33  9  Carson  &  Rand  Lumber  Co.  v.  Loltz- 
Ferl.  R.  114,  Brewer,  J. ;  s.  c.  34  Fed.  R.  claw,  39  Fed.  R.  578. 

225,  Brewer,  J. ;  Southworth  v.  Reid,  36  10  Duff  v.  Duff,  31  Fed.  R.  772 ;  Speer 

Fed.  R    451,  Bunn,  J.;  Hakes  v.  Burns,  on  Removal  of  Causes,  §  17,  p.  26,  note. 

40   Ferl.   R.  33,  Brewer,  J. ;   Malone   v.  n  Bowen   v.    Chase,   7    Blatchf.   255 ; 

Richmond  &  D.  R.  R.  Co.,  35  Fed.  R.  625,  Speer  on  Removal  of  Causes,  §   18,  p. 

Harlan,  J. ;  Robison  v.  Hardy,  38  Fed.  R.  26,  note. 
49,  Blodgett,  J. ;   Amy  v.  Manning,   38 


§  387.]        REMOVAL    FOR    PREJUDICE    OR   LOCAL    INFLUENCE.  579 

sible  in  the  State  court  to  which  the  case  was  remanded.12 
A  case  may  be  removed  for  prejudice  or  local  influence  by 
any  one  of  several  defendants,13  and  whether  the  controversy 
is  separable  or  not.14  But  all  the  parties  on  one  side  of  the 
controversy  must  be  citizens  of  different  States  from  all  of  their 
opponents.15  It  has  been  held  at  circuit  that  a  suit  to  which  an 
alien  is  a  party  cannot  be  thus  removed ; 16  that  no  suit  can  be 
thus  removed  unless  all  the  plaintiffs  are  citizens  of  the  State 
where  the  suit  is  brought ; 1:  and  that  if  the  controversy  is  sep- 
arable, the  Circuit  Court  may  remand  to  the  State  court  so  much 
as  does  not  affect  the  defendant  who  procured  the  removal ; 
but  that  otherwise,  the  whole  case  remains  in  the  Federal  court.18 
It  is  unsettled,  whether  a  case  in  which  the  matter  in  dispute 
does  not  exceed  $2,000  can  be  removed  on  account  of  prejudice 
or  local  influence.19  It  is  also  unsettled  whether  the  restriction 
as  to  suits  by  assignees  applies  to  removals  for  prejudice  or  local 
influence.20  It  has  been  held  that,  on  an  application  for  such  a 
removal,  the  papers  must  show  that  the  difference  of  citizenship 
existed  when  the  suit  was  commenced,  as  well  as  when  the 
petition  is  filed.21  What  constitutes  a  trial  within  the  meaning 
of  the  Act  of  1887  is  unsettled.  Under  the  old  practice,  it  was 
held  that  the  argument  of  a  demurrer  was  a  trial,22  and  in  a 
case  at  circuit,  that  the  argument  of  a  contested  motion  for  a 

12  Birdscye  v.  Schaeffer,  37  Fed.  R.  821.  Judge  Key,  in  Haskins  v.  C.  N.  O.  &  T.  P. 

«  Whelan  v.  N.  Y.  L.  E.  &  W.  R.  R.  Co.,  Ey.  Co.,  37  Fed.  R.  504,  Judge  Shiras,  in 

35  Fed.  R.  849;  Fisk  v.  Henarie,  32  Fed.  McDermott  v.  Chicago  &  N.  W.  Ry.  Co., 

R.  417.  38  Fed.  R.  529,  and  Judge  Speer,  in  his 

14  Whelan  v.  N.  Y.  L.  E.  &  W.  R.  R.  Co.,  work  on  Removal  of  Causes,  62,  seem  to  be 
35  Fed.  R.  849.  of  a  contrary  opinion. 

15  Jefferson  v.  Driver,  117  TJ.  S.  272;  20  See  Claflin  v.  Commonwealth  Insur- 
CambriaIronCo.«.Asliburn,118U.  S.54;  ance  Company,  110  U.  S.  81;  Bell  v. 
Young  v.  Parker's  Adm'r,  132  U.  S.  267.  Noonan,  19  Fed.  R.  225;  Malone  v.  Rich- 

16  Cohn  v.  Louisville,  N.  O.  &  T.  R.  R.  mond  &  D.  R.  R.  Co.,  35  Fed.  R.  625. 
Co.,  39  Fed.  R.  227.  21  y0Ung  v.  Ewart,   132   U.    S.      See 

17  Thomson  v.  East  Tennessee  &  G.  Johnson  v.  Monell,  Woohv.  390,  397; 
Ry.  Co.,  38  Fed.  R.  673.  Miller  v.  Chicago,  B.  &  Q.  R.  R.  Co.,  17 

is  Whelan  v.  N.  Y.  L.  E.  &  W.  R.  R.  Co.,  Fed.  R.  97  ;  Sands  v.  Smith,  1  Dill.  290 ; 

35  Fed.   R.    849.      But   see  Jefferson   v.  Cook  v.  Whitney,  3  Woods,  715 ;  Hone 

Driver,  117  U.  S.  272;  Cambria  Iron  Co.  v.   Dill.   29  Fed.  R.  465;  Frelinghuysen 

v.  Asliburn,  118  U.  S.  54;   Young  v.  Par-  v.  Baldwin,  19  Fed.  R.  49;  Schnadig  v. 

ker's  Adm'r,  132  U.  S.  267.  Flescher,  29  Fed.  R.  465. 

19  In  Malone  v.  Richmond  &D.R.R.  Co.,         22  Alley  v.  Nott,  111  U.  S.  472  ;  Scharff 

35  Fed.  II.  625,  626,  Mr.  Justice  Harlan,  v.  Levy,  112  U.  S.  711  ;  Gregory  v  Hart- 

and   in  Carson  &  Rand  Lumber  Co.  v.  ley,  113  U.   S.   742.     But   see   Hone  v. 

Holtzclaw,  39  Fed.  R.  678,  Judge  Thayer  Dillon,  29  Fed.  R.  465. 
held  that  such  a  case  cannot  be  removed. 


580  REMOVAL   OF   CAUSES.  [CHAP.  XXIX. 

preliminary  injunction  and  an  appeal  from  the  order  was  a  trial.23 
Since  the  Act  of  1887,  a  few  cases  at  circuit  have  held  that 
the  argument  of  a  demurrer  was  not  a  trial.24  The  entry  of 
an  order  taking  a  bill  as  confessed  is  not  a  trial.25 

§  387.  Practice  on  Removals  of  Suits  containing  Controversies 
between  Citizens  of  the  same  State,  claiming  Land  under  Grants  of 
different  States.  —  The  statute  regulating  the  removals  of  suits  in 
which  there  is  a  controversy  between  citizens  of  the  same  State 
claiming  land  under  grants  of  different  States,  is  as  follows:  "  If 
in  any  action  commenced  in  a  State  court  the  title  of  land  be 
concerned,  and  the  parties  are  citizens  of  the  same  State,  and  the 
matter  in  dispute  exceed  the  sum  or  value  of  two  thousand  dol- 
lars, exclusive  of  interest  and  costs,  the  sum  or  value  being  made 
to  appear,  one  or  more  of  the  plaintiffs  or  defendants,  before  the 
trial,  may  state  to  the  court,  and  make  affidavit,  if  the  court  re- 
quire it,  that  he  or  they  claim,  and  shall  rely  upon  a  right  or  title 
to  the  land  under  a  grant  from  a  State,  and  produce  the  original 
grant,  or  an  exemplification  of  it,  except  where  the  loss  of  public 
records  shall  put  it  out  of  his  or  their  power,  and  shall  move  that 
any  one  or  more  of  the  adverse  party  inform  the  court  whether 
he  or  they  claim  a  right  or  title  to  the  land  under  a  grant  from 
some  other  State,  the  party  or  parties  so  required  shall  give  such 
information,  or  otherwise  not  be  allowed  to  plead  such  grant,  or 
give  it  in  evidence  upon  the  trial ;  and  if  he  or  they  inform  that 
he  or  they  do  claim  under  such  grant,  any  one  or  more  of  the 
party  moving  for  such  information  may  then,  on  petition  and 
bond,  as  herein  before  mentioned  in  this  act,  remove  the  cause 
for  trial  to  the  Circuit  Court  of  the  United  States  next  to  be 
holden  in  such  district;  and  any  one  of  either  party  removing 
the  cause  shall  not  be  allowed  to  plead  or  give  evidence  of  any 
other  title  than  that  by  him  or  them  stated  as  aforesaid  as  the 
ground  of  his  or  their  claim."1 

§  388.  Practice  in  Removal  of  Suits  against  Revenue  Officers, 
and    Officers    of    either    House    of    Congress.  —  111    the   removal   of 

23  Chicago,  I  &  N.  P.  R.  R  Co.  >•  Min-  25  Fed.  R.  65.     See  also  Removal  Cases, 

nesota  &  N.  \V.  R.  R.  Co  ,  29  Fed.  R.  337.  100  U.  S.  457,  473;  Maloy  v.  Duden,  25 

2+  Whelan  v.  N.  Y.  L.  E  &  W.  R.  R.  Co.,  Fed  R.  673. 

35  Fed.  R.  849 ;   Fisk  v.  Henarie,  32  Fed.  §  387.  *  Act  of  March  3,  1875  (18  St. 

R.  417.  425.     Contra,  Lookout   Mountain  at  L.  eh.  137,  p.  470).  §  3,  as  amended 

R.  R.  Co.  v.  Houston,  32  Fed.  R.  711.  by  act  of  March  3,  1887  (24  St.  at  L.  ch. 

25  McHenry  v.  N.  Y.  P.  &  O.  R.  R.  Co.,  373). 


§  388.]  REMOVAL   OF   SUITS   AGAINST   REVENUE   OFFICERS.  581 

proceedings,  civil  or  criminal,  against  revenue  officers  of  the 
United  States,  persons  who  are  or  have  been  officers  of  either 
House  of  Congress,  for  acts  done  by  them  in  the  discharge 
of  their  official  duty,  the  practice  is  regulated  by  the  Revised 
Statutes  as  follows :  The  petition  must  set  forth  the  nature 
of  the  suit  or  prosecution,  and  be  verified  by  affidavit ;  and, 
together  with  a  certificate  signed  by  an  attorney  or  counsel- 
lor-at-law  of  some  court  of  record  of  the  State  where  such 
suit  or  prosecution  is  commenced,  or  of  the  United  States, 
stating  that,  as  counsel  for  the  petitioner,  ne  has  examined  the 
proceedings  against  him,. and  carefully  inquired  into  all  the 
matters  set  forth  in  the  petition,  and  that  he  believes  them  to 
be  true,  it  must  be  presented  to  the  Circuit  Court,  if  in  session, 
or  if  it  be  not,  to  the  clerk  thereof  at  his  office,  and  filed  in  said 
office.  The  cause  is  thereupon  entered  on  the  docket  of  the 
Circuit  Court,  and  proceeds  as  a  cause  originally  commenced  in 
that  court;  but  all  bail  and  other  security  given  upon  such  suit 
or  prosecution  continue  in  like  force  and  effect  as  if  the  same 
had  proceeded  to  final  judgment  and  execution  in  the  State 
court.  When  the  suit  is  commenced  in  the  State  court  by  sum- 
mons, subpoena,  petition,  or  another  process,  except  capias,  the 
clerk  of  the  Circuit  Court  issues  a  writ  of  certiorari  to  the  State 
court,  requiring  it  to  send  to  the  Circuit  Court  the  record  and 
proceedings  in  the  cause.  When  it  is  commenced  by  capias  or 
any  other  similar  form  of  proceeding  by  which  a  personal  arrest 
is  ordered,  the  clerk  issues  a  writ  of  habeas  corpus  cum  causa,  a 
duplicate  of  which  must  be  delivered  to  the  clerk  of  the  State 
court,  or  left  at  his  office  by  the  marshal  of  the  district,  or  his 
deputy,  or  by  some  person  duly  authorized  thereto ;  and  thereupon 
it  is  the  duty  of  the  State  court  to  stay  all  further  proceedings  in 
the  cause  ;  and  the  suit  or  prosecution,  upon  delivery  of  such 
process,  or  leaving  the  same  as  aforesaid,  is  held  to  be  removed 
to  the  Circuit  Court,  and  any  further  proceedings,  trial,  or  judg- 
ment therein  in  the  State  court  is  void.  If  the  defendant  in  the 
suit  or  prosecution  be  in  actual  custody  on  mesne  process  therein, 
it  is  the  duty  of  the  marshal,  by  virtue  of  the  writ  of  habeas  corpus 
cum  causa,  to  take  the  body  of  the  defendant  into  his  custody,  to 
be  dealt  with  in  the  cause  according  to  law  and  the  order  of  the 
Circuit  Court,  or,  in  vacation,  of  any  judge  thereof;  and  if,  upon 
the  removal  of  such  suit  or  prosecution,  it  is  made  to  appear  to 


582 


REMOVAL    OF   CAUSES. 


[chap.  XXIX. 


the  Circuit  Court  that  no  copy  of  the  record  and  proceedings 
therein  in  the  State  court  can  be  obtained,  the  Circuit  Court 
may  allow  and  require  the  plaintiff  to  proceed  de  novo,  and  to 
file  a  declaration  of  his  cause  of  action,  and  the  parties  may 
thereupon  proceed  as  in  actions  originally  brought  in  said  Circuit 
Court.  On  failure  of  the  plaintiff  so  to  proceed,  judgment  of 
non  prosequitur  may  be  rendered  against  him,  with  costs  for  the 
defendant.1 

§  389.  Practice  in  Removal  of  Cases  arising  under  Civil  Rights 
Laws.  —  Upon  the  filing  of  a  petition  for  the  removal  of  a  case 
arising  under  the  civil  rights  laws,  the  Revised  Statutes  provide 
that  "  all  further  proceedings  in  the  State  courts  shall  cease,  and 
shall  not  be  resumed  except  as  hereinafter  provided.  But  all 
bail  and  other  security  given  in  such  suit  or  prosecution  shall 
continue  in  like  force  and  effect,  as  if  the  same  had  proceeded  to 
final  judgment  and  execution  in  the  State  court.  It  shall  be  the 
duty  of  the  clerk  of  the  State  court,  to  furnish  such  defendant, 
petitioning  for  a  removal,  copies  of  said  process  against  him,  and 
of  all  pleadings,  depositions,  testimony  and  other  proceedings  in 
the  case.  If  such  copies  are  filed  by  said  petitioner  in  the 
Circuit  Court  on  the  first  day  of  its  session,  the  cause  shall  pro- 
ceed therein  in  the  same  manner  as  if  it  had  been  brought  there 
by  original  process :  and  if  the  said  clerk  refuses  or  neglects  to 
furnish  such  copies,  the  petitioner  may  thereupon  docket  the 
case  in  the  Circuit  Court,  and  the  said  court  shall  then  have 
jurisdiction  therein,  and  may,  upon  proof  of  such  refusal  or 
neglect  of  said  clerk,  and  upon  reasonable  notice  to  the  plaintiff, 
require  the  plaintiff  to  file  a  declaration,  petition  or  complaint 
in  the  cause ;  and,  in  case  of  Ids  default,  may  order  a  nonsuit 
and  dismiss  the  case  at  the  costs  of  the  plaintiff,  and  such  dis- 
missal shall  be  a  bar  to  an}'  further  suit  touching  the  matter  in 
controversy.  But  if,  without  such  refusal  or  neglect  of  said 
clerk  to  furnish  such  copies  and  proof  thereof,  the  petitioner  for 
removal  fails  to  file  copies  in  the  Circuit  Court  as  herein  pro- 
vided, a  certificate  under  the  seal  of  the  Circuit  Court,  stating 
such  failure,  shall  be  given,  and  upon  the  production  thereof  in 
said  State  court,  the  cause  shall  proceed  therein  as  if  no  petition 
for  a  removal  had  been  filed."1  "When  all  acts  necessary  for  the 


§  388.   i  U.  S.  R.  S.  §  643 ;  18  St.  at  L. 
ch.  130,  §  8  401 ;  1  Supp.  U.  S.  K.  S.  p.  165. 


§  389.  i  U.  S.  R.  S.  §  641. 


§  390.]  FILING   OF  RECORD.  583 

removal  of  any  suit  or  prosecution,  as  provided  in  the  preceding 
section,  have  been  performed,  and  the  defendant  petitioning  for 
such  removal  is  in  actual  custod}'-  on  process  issued  by  said  State 
court,  it  shall  be  the  duty  of  the  clerk  of  said  Circuit  Court  to 
issue  a  writ  of  habeas  corpus  cum  causa,  and  of  the  marshal,  by 
virtue  of  said  writ,  to  take  the  body  of  the  defendant  into  cus- 
tody, to  be  dealt  with  in  said  Circuit  Court  according  to  law  and 
the  orders  of  said  court,  or  in  vacation,  of  any  judge  thereof; 
and  the  marshal  shall  file  with  or  deliver  to  the  clerk  of  said 
State  court  a  duplicate  copy  of  said  writ."2 

§  390.  Filing  of  Record.  —  The  statute  regulating  the  filing 
of  the  record  after  a  removal  is  as  follows :  "  That  in  all  causes 
removable  under  this  act,  if  the  term  of  the  Circuit  Court  to 
which  the  same  is  removable,  then  next  to  be  holden,  shall  com- 
mence within  twenty  days  after  filing  the  petition  and  bond  in 
the  State  court  for  its  removal,  then  he  or  they  who  apply  to 
remove  the  same  shall  have  twenty  days  from  such  application 
to  file  said  copy  of  record  in  said  Circuit  Court  and  enter  appear- 
ance therein;  and  if  done  within  said  twenty  days,  such  filing 
and  appearance  shall  be  taken  to  satisfy  the  said  bond  in  that 
behalf ;  that  if  the  clerk  of  the  State  court  in  which  any  such 
cause  shall  be  pending  shall  refuse  to  any  one  or  more  of  the 
parties  or  persons  applying  to  remove  the  same  a  copy  of  the 
record  therein,  after  tender  of  legal  fees  for  such  copy,  said  clerk 
so  offending  shall  be  deemed  guilty  of  a  misdemeanor,  and,  on 
conviction  thereof  in  the  Circuit  Court  of  the  United  States  to 
which  said  action  or  proceeding  was  removed,  shall  be  punished 
by  imprisonment  not  more  than  one  year,  or  by  fine  not  exceed- 
ing one  thousand  dollars,  or  both,  in  the  discretion  of  the  court. 
And  the  Circuit  Court  to  which  any  cause  shall  be  removable 
under  this  act  shall  have  power  to  issue  a  writ  of  certiorari  to 
said  State  court,  commanding  said  State  court  to  make  return  of 
the  record  in  any  such  cause  removed  as  aforesaid,  or  in  which 
any  one  or  more  of  the  plaintiffs  or  defendants  have  complied 
with  the  provisions  of  this  act  for  the  removal  of  the  same,  and 
enforce  said  writ  according  to  law;  and  if  it  shall  be  impossible 
for  the  parties  or  persons  removing  any  cause  under  this  act,  or 
complying  with  the  provisions  for  the  removal  thereof,  to  obtain 
such  copy,  for  the  reason  that  the  clerk   of  said  State  court 

2  U.  S.  R.  S.  §  642. 


584  REMOVAL  OF  CAUSES.  [dlAP.  XXIX. 

refuses  to  furnish  a  copy,  on  payment  of  legal  fees,  or  for  any 
other  reason,  the  Circuit  Court  shall  make  an  order  requiring  the 
prosecutor  in  any  such  action  or  proceeding  to  enforce  forfeiture 
or  recover  penalty  as  aforesaid,  to  file  a  copy  of  the  paper  or  pro- 
ceeding by  which  the  same  was  commenced  within  such  time  as 
the  court  may  determine;  and  in  default  thereof  the  court  shall 
dismiss  the  said  action  or  proceeding.  But  if  said  order  shall  he 
complied  with,  then  said  Circuit  Court  shall  require  the  other 
party  to  plead,  and  said  action  or  proceeding  shall  proceed  to 
final  judgment ;  and  the  said  Circuit  Court  may  make  an  order 
requiring  the  parties  thereto  to  plead  de  novo ;  and  the  bond 
given,  conditioned  as  aforesaid,  shall  be  discharged  so  far  as  it 
requires  copy  of  the  record  to  be  filed  as  aforesaid."  1  The  fail- 
ure to  file  a  copy  of  the  record  on  or  before  the  first  day  of  its 
next  session  does  not  deprive  the  Federal  court  of  jurisdiction  to 
proceed  in  the  suit ;  and  that  court  has  power  to  allow  the 
record  to  be  subsequently  filed.2  If  the  removing  party  is  forced 
by  his  adversaiy  to  remain  in  the  State  court,  such  adversary 
waives  the  requirement  of  the  law  as  to  the  time  of  filing  the 
record  until  the  State  court  lets  go  its  jurisdiction.3  It  has  been 
held,  at  circuit,  that  before  the  first  day  of  the  succeeding  term 
either  party  may  obtain  leave  from  the  Circuit  Court  to  file  the 
record,4  or  even  file  the  record  without  such  leave  ; 5  and  that, 
after  the  record  is  filed,  the  Federal  court  has  jurisdiction  to 
remand  the  case6  or  grant  a  provisional  remedy;7  but  that  the 
cause  cannot  be  heard  and  determined  until  the  time  named  in 
the  bond  has  expired.8  Where  the  Circuit  Court  is  held  in  differ- 
ent places  in  the  district,  the  record  must  be  filed  in  the  clerk's 

§  300.   1  Act  of  March  3,  1875  (18  St.  5  Anderson  i\  Appleton,  32  Fed.  R.  855. 

at  L.  ch.  137,  p.  470),  §  7,  as  re-enacted  See  Deblanco  v.  Singletary,  40  Fed.  R. 

by  act  of  March  3,  1887  (24  St.  at  L.  177. 
ch.  373).  6  Anderson   v.  Appleton,   32  Fed.  R. 

2  St.  Paul  &  C.  R.  R.  Co.  v.  McLean,  855 ;  Deblanco  v.  Singletary,  40  Fed.  R. 
108  U.  S.  212, 216  ;  Railroad  Co.  v.  Koontz,  177.  But  see  Railroad  Co.  v.  Koontz,  104 
104  U.  S.  5;  Bright  v.  Milwaukee  &  St.  U   S.  5. 

P.  R.  R.  Co.,  14  Blatchf.  214 ;   Winchell  7  Mahoney  Mining  Co.  v.  Bennett,  4 

v.  Coney,  27  Fed.  R,  482 ;  Rowell  v.  Hill,  Saw.  289  ;  C.  &  S.  Bank  of  San  Jose'  v. 

28  Fed.  R.  433;   McGregor  v.   McGillis,  Corbett,  5  Saw.  172;   Kansas  City  &  T. 

30  Fed.  R.  388.  R.v-    Co.    v.   Interstate   Lumber  Co.,   36 

3  Railroad  Co.  v.  Koontz,  104  U.S.  5, 16.  Fed.  R.  9. 

4  Mahoney  Mining  Company  v.  Ben-  8  Matter  of  Barnesville  &  M.  R.  R. 
nett,  4  Sawyer,  289  ;  Commercial  &  Sav-  Co.,  2  McCrary,  216.  But  see  Delbanco 
ings  Bank  of  San  Jose'  v.  Corbett,  5  Saw.  v.  Singletary,  40  Fed.  R.  177. 

172. 


§  391]  PRACTICE    AFTER   REMOVAL.  585 

office  at  that  place  where  the  suit  was  pending  in  the  State  court, 
or  in  the  nearest  and  most  convenient  place  to  that  where  the 
court  is  held.9  The  pleadings  are  part  of  the  record,  which 
must  he  filed.10  So  are  all  depositions  on  file  in  the  State 
court.11 

§  391.  Practice  after  Removal.  —  The  statute  provides  "  that 
the  Circuit  Court  of  the  United  States  shall,  in  all  suits  removed 
under  the  provisions  of  this  act,  proceed  therein  as  if  the  suit  had 
been  original]}'  commenced  in  said  Circuit  Court,  and  the  same 
proceedings  had  been  taken  in  such  suit  in  said  Circuit  Court  as 
shall  have  been  had  therein  in  said  State  court  prior  to  its  re- 
moval." 1  If  the  suit  in  the  State  court  is  in  its  nature  an  action 
at  common  law,  no  repleader  is  necessary  after  the  removal.2 
When  it  is  in  its  nature  equitable,  a  repleader  is  customaiy,  but 
not  indispensable  if  the  allegations  in  the  pleading  in  the  State 
court  are  sufficient.3  When  the  suit  in  the  State  court  unites 
legal  and  equitable  grounds  of  relief  or  defense,  as  authorized 
by  the  State  statute,  it  may  be  recast  into  two  cases  after  the 
removal.4  In  such  a  case  a  repleader  is  necessary.5  The  neces- 
sity of  a  repleader  may  be  raised  by  a  motion  for  a  repleader6  as 
well  as  by  a  demurrer.  If  no  repleader  is  then  had,  so  much 
of  the  pleadings  as  presents  matters  not  cognizable  on  that  side 
of  the  court  to  which  the  case  is  removed  will  be  stricken  out 
or  disregarded,  without  prejudice  to  its  presentation  in  a  new 
suit.7  When  the  plaintiff  proceeds  after  removal  upon  the  wrong 
side  of  the  court,  the  proper  practice  is  to  sustain  a  demurrer 
to  his  pleading,  without  prejudice  to  his  right  to  replead  on  the 

9  Cobb  v.  Globe  Mutual  Life  Ins.  Co.,  Memphis  &  0.  R.  P.  Co.,  19  Federal  Re- 

3  Hughes,  452.  porter,  273 

10  McBratney  v.  Usher,  1  Dill.  367.  *  Perkins  v.  Hendry  x,  23  Fed.  R.  418; 

"  Miller  v.  Tobin,  18  Fed.  R.  609.  Lacroix  v.  Lyons,  27  Fed.   R.  403;    La 

§  391.    i  Act  of  March  3,  1875  (18  St.  Mothe    Manuf.    Co.    v.    National    Tube 

at  L.  ch.  137,  p.  470),  §  6,  as  re-enacted  Works  Co.,  15  Blatcbf.   432  ;    Phelps  v. 

in  act  of  March  3,  1887   (24   St.  at  L.  Elliott,  26  Fed.  R.  881  ;  Northern  Pacific 

ch.  373).  R.  B.  Co.  v.  Paine,  119  U.  S.  561. 

2  Dart  v.  McKinney,  9  Blatcbf.  359;  5  Hurt  w.Hollingsworth,  100  U.  S.  100; 

Merchants'  &  M.  National  Hank  v.  Wheel-  Lacroix  v.  Lyons,  27  Fed.  R.  403. 
er,  13  Blatcbf.  218;  Bills  v.  New  Orleans,         c  Whittenton  o    Memphis  &   <).  R.  R. 

St.  L.  &  C.  R.  R.  Co.,  13  Blatchf.  227.  Co.,  19  Fed.  R.  27:: 
But  see   Whittenton   v.  Memphis  &  O.         ~  Perkins  v.  Hendryx,  23  Fed.  R.  418 ; 

R.    P.   Co.,   19  Fed.   R.   273;    Northern  Lacroix  v.  Lyons,  27  Fed.  R.    103;    La 

Pacific   R.   R.   Co.   v.   Paine,  119  U.  S.  Mothe    Manuf.    Co.    v.   National    Tube 

56L  Works  Co.,  15  Blatchf.   432;  Phelps  v. 

s  Dillon  on  Removal  of  Causes,  §  47  Elliott,  20  Fed.  R.  881  ;  Northern  Pacific 

(4th  ed.),  p.  76.     But  see  Whittenton  v.  R.  R.  Co.  v.  Paine,  119  U.  S.  561,  563. 


586  EEMOVAL   OF   CAUSES.  [CIIAP.  XXIX. 

other  side  of  the  court.8  It  has  been  held  in  the  Eighth  Cir- 
cuit that,  if  the  suit  is  of  an  equitable  nature,  the  defendant's 
right  to  plead  does  not  expire  till  the  second  rule-day  after 
his  appearance,  although  his  answer  was  clue  when  the  petition 
for  a  removal  was  filed.9  In  the  Second  and  Fourth  Circuits, 
it  has  been  said  that  the  time  for  pleading  in  equity  and  at 
common  law  is  suspended  until  the  record  is  filed,  and  then 
begins  to  run  again,  computing  with  it  the  time  which  had 
passed  in  the  State  court  before  the  removal.10  In  the  Sixth 
Circuit  the  rule  seems  to  be,  that  the  running  of  the  time  to 
plead  is  suspended  till  the  time  fixed  by  the  statute  for  the  filing 
of  the  record,  although  the  record  is  filed  by  order  of  the  court 
before  the  statutory  time.11  It  seems  that  the  filing  of  a  petition 
and  bond  for  removal,  if  not  accompanied  by  a  general  appear- 
ance, does  not  prevent  a  motion  in  the  Federal  court  to  set  aside 
the  service  of  the  process  and  dismiss  the  suit  for  want  of  juris- 
diction of  the  person.12  It  was  held,  under  the  Act  of  1875,  that 
when  a  defendant  was  properly  within  the  jurisdiction  of  the 
State  court,  he  could  not,  after  the  removal,  have  the  suit  dis- 
missed upon  the  ground  that  he  was  not  served  within  that 
Federal  district.13  "  Wherever  there  is  a  total  absence  of  juris- 
diction over  the  subject-matter  in  the  State  court,  so  that  it  had 
no  power  to  entertain  the  suit  in  which  the  controversy  was 
sought  to  be  litigated  in  its  then  existing  or  any  other  form, 
there  can  be  no  jurisdiction  in  the  Federal  court  to  entertain  it 
on  removal,  although  in  some  other  form  it  would  have  plenary 
jurisdiction  over  the  case  made  between  the  parties."  14  If  after 
amendment  the  pleadings  do  not  allege  the  jurisdictional  facts, 
the  suit  will  not  be  dismissed  if  they  appear  in  the  petition  for 
the  removal.15     After  a  petition  and  bond  for  a  removal  have 

8  Perkins  v.  Hendryx,  23  Fed.  R.  418,  Kennedy,  25  Fed.  R.  785.  But  see  Sayles 
419.  But  see  Pilla  v.  German  School  v.  N.  W.  Ins.  Co.,  2  Curt.  212  ;  Edwards  v. 
Ass'n,  23  Fed.  R.  700,  702;  Phelps  v.  Conn.  Mutual  Life  Ins.  Co.,  20  Fed.  R. 
Elliott,  26  Fed.  R.  881,  883.  452 ;  and  §§  100-101. 

9  Webster  v.  Crothers,  1  Dill.  301.  13  Friezen  v.  Allemania  Fire  Ins.  Co., 
But  see  Heidecker  v.  Red  Star  Line  S.  S.  30  Fed.  R.  349. 

Co.,  32  Fed.  R.  706.  "  Fidelity    Trust   Co.  v.  Gill  Car  Co., 

w  Heidecker  v.  Red  Star  Line  S.  S.  Co.,  25  Fed.  R.   737,  739,  per  Hammond,  J. 

32  Fed.  R.  706  ;  Pelzer  Manuf .  Co.  v.  St.  Same  point,  Hummel  v.  Moore,  25  Fed.  R. 

Paul  Fire  &  Marine  Ins.  Co..40Fed.  R.  185.  380;   Sutro  v.  Simpson,  14  Fed.  R.  370  ; 

11  Torrent    v.   S.   K.   Martin    Lumber  Goldstein  v.  New  Orleans,  38  Fed.  R.  626. 

Co..  37  Fed.  R.  727.  Contra,  Kelly  v.  Virginia  Protection  Ins. 

!2  Hendrickson  v.  Chicago,  R.  I.  &  P.  Co.,  3  Hughes,  449. 

R.  R,  Co.,  22  Fed.  R.  569;  Kauffman  v.  15  Briges  v.  Sperry,  95  U.  S.  401. 


§  391.]  PRACTICE   AFTER   REMOVAL.  5S7 

been  filed,  the  pleading  cannot  be  so  amended  by  a  redaction  of 
the  amount  involved  as  to  defeat  the  jurisdiction  of  the  Circuit 
Court.13  It  has  been  said,  that  if  the  amount  in  dispute  when 
the  suit  is  commenced  is  sufficient  to  authorize  a  removal,  no 
subsequent  event  can  defeat  the  right  to  remove.17  But  there  is 
a  ruling  at  circuit  to  the  contrary.18  After  a  Circuit  Court  of 
the  United  States  has  once  rightfully  acquired,  jurisdiction  of  a 
cause  by  removal  or  original  process,  an  amendment  bringing  in 
new  parties  or  a  new  cause  of  action  will  not  ordinarily  defeat 
the  jurisdiction.19  The  decisions  of  the  State  court  made  in  the 
case  before  its  removal  will  ordinarily  be  followed  by  the  Circuit 
Court.20  If  it  is  desired,  to  renew  a  motion  which  the  State 
court  has  denied,  leave  to  make  the  application  should  first  be 
applied  for  and  obtained.21  When,  however,  at  the  time  of  a 
removal,  a  motion  was  pending  to  resettle  an  order  previously 
made,  the  Circuit  Court  entertained  the  application,  though  it 
refused  to  review  the  decision  upon  which  that  order  had  been 
entered.22  If  the  jurisdictional  facts  are  not  stated  in  the  peti- 
tion, an  amendment  stating  them  cannot  be  allowed  in  the 
Federal  court.23  It  has  been  said  that  if  they  are  stated  infor- 
mally, such  an  amendment  may  be  allowed.24  An  answer  may 
be  treated  as  an  amendment  to  a  petition.25  An  amendment 
cannot  be  allowed  in  the  Supreme  Court.26  When  a  case  has 
been  remanded  a  second  petition  on  the  same  grounds  cannot  be 
filed.27  But  a  removal  can  be  made  for  prejudice  or  local  influ- 
ence after  a  case  sought  to  be  removed  for  difference  of  citizen- 

16  Kanouse   v.  Martin,   15  How.   198;  21  Carrington  v.  Florida  R.  It.  Co.,  9 

Green  v.  Custard,  23  How.  484 ;  Wright  Blatchf.  468. 

v.  Wells,  1  Pet.  C.  C.   220;    Roberts  v.  22  Milligan  v.  Lalance  &  G.  Manuf.  Co., 

Nelson,  8  Blatchf.  74.  17  Fed.  R.  405. 

«  Roberts  v.  Nelson,  8  Blatchf.  74.  a  Crehore  v.  Ohio  &  M.  Rv.  Co.,  131 

18  Maine  v.  Oilman,  11  Federal  Re-  TJ.  S.  240;  Jackson  v.  Allen,"  132  U.  S. 
porter,  214.  27. 

19  Ober  v.  Gallagher,  93  U.  S.  199,  24  Avers  p.  Watson.  113  TJ.  S.  594,  598; 
206;  Stewart  v.  Dunham,  115  U.  S.  Carson  p.  Dunham,  121  P.  S.  421.  But 
61,64.  see  Crehore  v.  Ohio  &  M.  Rv.  Co.,  131 

2«  Bryant  r.  Thompson.  27  Fed.  R.  881;  U.  S.  210  ;  Winnemans  >:  Edgington,  27 

Loomisw.  Carrington,  18  Fed.  R  97;  Dun-  Fed.  R.  324,  326;  Freeman  p.  Butler,  39 

can  v.  Gegan,  101  U.  S.  810;   Milligan  v.  Fed.  R.  1  ;  Jackson  v.  Allen,  132  U.  s'  27. 
Lalance  &   G.  Manuf.   Co.,  21    Blatchf.        25  Carson  v  Dunham,  121  D.  S.  421. 
407;  Bnshnell  v.  Kennedy,  9  Wall.  387;        26  Cameron  v  Hodges,  127  V.  S   322. 
Davis  p.  St.  Louis  &  S.  F.  R.  R.  Co.,  25        27  St  Paul  &  c.  R.  R.  Co.  v.  McLean, 

Fed.    R.   786.      But   see    Spring  Co.   v.  108  U.  S.  212,  217. 
Knowlton,  103  U.  S.  49. 


588  REMOVAL   OF   CAUSES.  [CHAP.  XXIX. 

ship  alone  has  been  remanded.28  It  has  been  held  at  circuit  that, 
after  the  time  for  a  removal  has  expired,  a  bond  previously  filed 
can  be  amended,  or  a  new  bond  substituted  for  an  error  or  in- 
formality,29 such  as  an  error  in  the  name  of  the  obligee  ;  but 
not  as  regards  an  error  of  substance,  such  as  the  omission  of  any 
sum  in  the  penal  clause,30  or  the  omission  of  the  provision  for  the 
payment  of  costs;31  and  that  an  order  allowing  a  bond  to  be 
filed  nunc  pro  tunc,  as  of  the  date  of  the  filing  of  the  petition, 
cannot  be  granted  after  the  time  for  removal  has  expired.32 

§  392.  Effect  of  Removal.  —  The  statute  prescribes  as  follows 
concerning  the  effect  of  a  removal :  "  That  when  any  suit  shall 
be  removed  from  a  State  court  to  a  Circuit  Court  of  the  United 
States  any  attachment  or  sequestration  of  the  goods  or  estate  of 
the  defendant  had  in  such  suit  in  the  State  court  shall  hold  the 
goods  or  estate  so  attached  or  sequestered  to  answer  the  final 
judgment  or  decree  in  the  same  manner  as  by  law  they  would 
have  been  held  to  answer  final  judgment  or  decree  had  it  been 
rendered  by  the  court  in  which  such  suit  was  commenced ;  and 
all  bonds,  undertakings,  or  security  given  by  either  party  in  such 
suit  prior  to  its  removal  shall  remain  valid  and  effectual,  not- 
withstanding said  removal ;  and  all  injunctions,  orders,  and  other 
proceedings  had  in  such  suit  prior  to  its  removal  shall  remain  in 
full  force  and  effect  until  dissolved  or  modified  by  the  court  to 
which  such  suit  shall  be  removed."  x  The  Act  of  1875  provided 
that  upon  a  removal  "  any  bail  that  may  have  been  previously 
taken  shall  be  discharged/'  This  clause  is  repealed  by  the  Act 
of  1887,  and  such  bail  is  now,  therefore,  a  security  which  remains 
in  force.  A  stipulation  made  before  removal  may  be  enforced 
afterward.2  It  has  been  held  at  circuit,  that,  after  removal,  the 
Federal  court  may  authorize  its  marshal  to  take  into  his  custody 
property  held  by  the  sheriff  under  a  writ  of  the  State  court 
issued  before   the  removal.3     A  receiver   appointed   before  the 

2*  Birdseye  v.  Shaeffer.  37  Fed.  R.  821.  32  Austin  v.  Gagan,  39  Fed.  R.  626. 

29  Harris  v.  Delaware,  L.  &  W.  R.  Co.,  §  392.    J  Section  4  of  act  of  March  3, 

18  Fed.  R.  833;  Beede  v.  Cheeney,  5  Fed.  1875  (18  St.  at  L.  ch.  137,  p.  470);  as 

R.  388 ;  Deford  v.  Mehaffy,  13  Fed.  R  481.  amended  in  act  of  March  3,  1887  (24  St. 

3«  Austin   v.   Gagan,  39  Fed.  R.  626 ;  at  L.  ch.  373). 

Burdick  V.  Hale,  7  Biss.  96.  -  Phelps  v.  Canada  Cent.  R.  Co.,  19 

31  Torrey  v.  Grant  Locomotive  Works,  Fed.  R.  801. 

14  Blatchf.   269;   Webber  v.  Bishop,  13  3  Friedman  v.  Israel,  26  Fed.  R.  801. 

Fed.  R.  40.     Contra,  Deford  v.  Mehaffy,  See    Dennistoun    v.   Draper,   5   Blatchf 

13  Fed.  R.  481.  336. 


§  393.]  REMAND.  589 

removal  of  the  case  remains  in  possession  until  himself  removed, 
and  may  be  required  to  account  in  the  Federal  court.4  It  has 
been  held  at  circuit,  that  the  Federal  court  cannot  after  re- 
moval punish  a  party  for  his  violation  before  the  removal  of  an 
order  of  the  State  court.5  An  order  of  the  State  court  for  the 
examination  of  a  party  before  trial  under  §  870  of  the  New  York 
Code  of  Civil  Procedure  must  be  vacated  after  removal  by  the 
Federal  court.6  It  was  held  at  circuit,  in  a  case  where,  before 
the  removal,  a  deposition  had  been  taken  down  in  shorthand, 
but  not  signed,  that  the  Federal  court  could  not  compel  the 
witness  to  sign  the  deposition.7 

§  393.  Remand. —  The  statute  provides:  "  That  if,  in  any  suit 
commenced  in  a  Circuit  Court,  or  removed  from  a  State  court  to 
a  Circuit  Court  of  the  United  States,  it  shall  appear  to  the  satis- 
faction of  said  Circuit  Court  at  any  time  after  such  suit  has  been 
brought  or  removed  thereto,  that  such  suit  does  not  really  and 
substantially  involve  a  dispute  or  controversy  properly  within  the 
jurisdiction  of  said  Circuit  Court,  or  that  the  parties  to  said  suit 
have  been  improperly  or  collusively  made  or  joined,  either  as 
plaintiffs  or  defendants,  for  the  purpose  of  creating  a  case  cogni- 
zable or  removable  under  this  act,  the  said  Circuit  Court  shall 
proceed  no  further  therein,  but  shall  dismiss  the  suit  or  remand 
it  to  the  court  from  which  it  was  removed,  as  justice  may  require, 
and  shall  make  such  order  as  to  costs  as  shall  be  just."  A  case 
which  was  properly  removed  cannot  be  remanded  by  consent.1 
A  remand  for  want  of  jurisdiction  may  be  made  at  the  motion  of 
the  party  who  removed  the  case.2  Such  a  motion  may  be  made 
after  a  verdict,3  or  it  seems  after  judgment  against  the  moving 
party  ;4  or  the  judgment  may  be  reversed  and  a  remand  ordered 
upon  an  appeal  by  the  party  who  removed  the  cause.5 

In  a  case  where  the  remand  was  thus  made  after  a  verdict 
against  the  removing  party,  no  costs  wrere   imposed.0      In  the 

4  Hinckley  v.  Railroad  Co.,  100  U.  S.  Swan,  111  IT.  S.  379 ;  Lazensky  v.  Knights 

153;  Mack  v.  Jones,  31  Fed.  R.  189,  196.  of  Honor,  32  Fed.   R.  417;   Ferguson  v. 

6  Kirk  v.  Milwaukee  D.  C.  Manuf .  Co.,  Ross,  38  Fed.  R.  161. 
26  Fed.  R.  501.     But  see  Williams,  M.  &  3  Ferguson   v.    Ross,  38  Fed.  R.  161. 

R.  Co.  v.  Raynor,  7  Biss.  215.  But  see  Davies  v.  Lathrop,  13  Fed.  R. 

6  Ex  parte  Fisk,  113  U.  S.  713.     See  565. 

§  372.  4  Lazensky  p.  Knights  of  Honor,  32 

7  Arnold  v.  Kearney,  29  Fed.  R.  820.        Fed.  R.  417. 

§  393.  i  Lawtou  v.  Blitch,  30  Fed.  R.  6  Mansfield,  C.  &  L.  M.  Ry.  Co.  v. 
641.  Swan,  111  U.  S.  379. 

2  Mansfield,  C.   &   L.  M.  Ry.    Co.  v.         6  Ferguson  v.  Ross,  38  Fed.  R.  161. 


590 


REMOVAL    OF    CAUSES. 


[CHAP.  XXIX. 


Supreme  Court,  when  a  judgment  or  decree  is  reversed  for  want 
of  jurisdiction,  costs  are  imposed  upon  the  party  who  sought  the 
jurisdiction  of  the  court  below,  either  by  original  process  or  by 
removal,  whether  he  is  respondent  or  appellant.7 

The  costs  imposed  upon  a  remand  are  the  docket  fee  of  $20, 
and  such  taxable  disbursements  as  have  been  incurred  in  the 
Federal  court;8  but  not  disbursements  incurred  in  the  State 
court  after  the  petition  for  a  removal  was  filed.9 

A  delay  of  a  year  after  the  filing  of  a  petition  for  a  removal 
was  held  a  waiver  of  the  objection  that  such  petition  was  filed 
too  late  ; I0  but  delay  does  not  waive  a  jurisdictional  defect.11 

The  better  practice,  if  it  is  intended  to  deny  any  of  the  allega- 
tions in  the  petition  for  a  removal,  is  to  file  a  plea  in  abatement ; ia 
but  it  seems  that  this  is  not  indispensable.13  When  any  allegation 
in  the  petition  is  denied,  the  burden  of  proof  rests  on  the  peti- 
tioner.14 All  questions  of  this  sort  must  be  tried  in  the  Federal 
court.15 

The  Act  of  March  3, 1887,  provides  that  "no  appeal  or  writ  of 
error  to  the  decision  of  the  Circuit  Court  remanding  a  cause  shall 
be  allowed."  ie  The  act  of  February  25,  1889,  authorizes  a  writ 
of  error  or  appeal  to  the  Supreme  Court,  without  reference  to  the 
amount  involved,  in  all  cases  where  a  final  judgment  or  decree 
shall  be  rendered  in  a  Circuit  Court  of  the  United  States,  in 
which  there  is  a  question  involving  the  jurisdiction  of  the  court ; 
but  provides  that  in  cases  where  the  judgment  or  decree  does  not 
exceed  the  sum  of  $5,000,  the  Supreme  Court  shall  not  review 
any  question,  except  such  question  of  jurisdiction.17 


7  Mansfield,  C.  &  L.  M.  By.  Co.  v. 
Swan,  111  U.  S.  379;  Continental  Insur- 
ance Co.  v.  Ehoads,  119  TJ.  S.  237 ;  Peper 
v.  Fordyce,  119  U.  S.  469;  Everhart  v. 
Huntsville  College,  120  U.  S.  223;  King 
Bridge  Co.  v.  Otoe  County,  120  U.  S. 
225  ;  Chapman  ».  Barney,  129  U.  S.  677  ; 
Peninsular  Iron  Co.  v.  Stone,  121  U.  S. 
631. 

8  Josslyn  v.  Phillips,  27  Fed.  Eep.  481. 

9  Young  v.  Merchants'  Ins.  Co.,  29 
Fed.  E.  273. 

30  Miller  v.  Kent,  18  Fed.  E.  561 ;  Bal- 
timore &  O.  E.  E.  Co.  v.  Ford,  35  Fed.  E. 
170. 

11  Jackson  v.  Allen,  132  U.  S.  27;  La- 
zensky  v.  Knights  of  Honor,  32  Fed.  E. 
417  ;  Ferguson  v.  Eoss,  38  Fed.  E.  161. 


12  Clarkhuff  v.  Wisconsin,  I.  &  N.  E.  E. 
Co.,  26  Fed.  Eep.  465  ;  Lacroix  v.  Lyons, 
27  Fed.  E.  403 ;  Rumsey  v.  Call,  28  Fed. 
R.  769  ;  Carson  v.  Dunham,  121  U.  S.  421 ; 
M'Donald  v.  Salem  C.  F.  M.  Co.,  31  Fed. 
E.  577 ;  Johnson  v.  Accident  Ins.  Co.  of 
North  America,  35  Fed.  E.  374 ;  Imperial 
Eefining  Co.  v.  Wyman,  38  Fed.  E.  574. 

13  Beadleston  v.  Harpending,  32  Fed.  E. 
644 ;  Anderson  v.  Appleton,  32  Fed.  E. 
855;  Morris  v.  Gilmer,  129  U.  S.  315. 

14  Carson  v.  Dunham,  121  U.  S.  421, 
425. 

is  Stone  v.  South  Carolina,  117  U.  S. 
430;  Burlington,  C.  E.  &  N.  Ey.  Co.  v. 
Dunn,  122  U.  S.  513. 

i6  24  St.  at  L.  ch.  373,  p.  552. 

17  25  St.  at  L.  ch.  236,  p.  693. 


394]  WRITS  OF  ERROR  AND  APPEALS  TO  THE  SUPREME  COURT.  591 


CHAPTER  XXX. 

WRITS   OF   ERROR   AND   APPEALS. 

§  394.  "Writs  of  Error  and  Appeals  to  the  Supreme  Court  of  the 
United  States.  —  A  writ  of  error  is  the  appropriate  proceeding  for 
the  review  of  the  judgment  of  a  court  at  law.  An  appeal  is  the 
appropriate  proceeding  for  the  review  of  the  decree  of  a  court  of 
equity  or  admiralty.  When  the  record,  is  brought  before  it  by  a 
writ  of  error,  the  court  looks  into  it  to  see  if  any  error  of  law 
was  committed  by  the  inferior  court.  There  can  be  no  reversal 
upon  a  writ  of  error  for  any  error  in  fact.1  Upon  an  appeal  the 
appellate  court  reviews  the  case  upon  the  evidence  taken  in  the 
inferior  court,  and  certified  to  it. 

To  these  rules  of  the  English  practice,  the  Federal  statutes 
have  made  four  exceptions.  Upon  a  writ  of  error,  there  can  be 
no  reversal  for  error  in  ruling  any  plea  in  abatement,  such  as  the 
plea  of  the  pendency  of  another  suit,  other  than  a  plea  to  the 
jurisdiction  of  the  court.2  The  review  of  judgments  and  decrees 
upon  the  instance  side  of  a  Circuit  Court  when  deciding  causes 
of  admiralty  and  maritime  jurisdiction,  is  limited  by  a  recent 
statute  to  a  determination  of  questions  of  law  arising  upon  the 
record,  and  to  such  rulings  of  the  Circuit  Court,  excepted  to  at 
the  time,  as  may  be  presented  by  a  bill  of  exceptions,  pre- 
pared as  in  actions  at  law.3  Consequently,  no  disputed  question 
of  fact  can  be  reviewed  on  such  an  appeal,  provided  there  was 
any  evidence  in  support  of  the  finding  below.4  The  same  rule 
would  seem  to  apply  to  appeals  from  the  judgments  and  decrees 
of  the  Territorial  courts  in  cases  not  tried  by  a  jury.5  A  writ  of 
error  from  the  Supreme  Court  of  the  United  States  will  lie  to  no 

§  394.  »  Wiscart  v.    Dauchy,  3    Dall.  *  The  Abbotsford,  98  U.  S.  4»0:  Mer- 

321,  327;  U.  S.  v.   Goodwin,  7    Cranch,  chants' Insurance  Co.  v.  Allen,  121  U.  S. 

108,  110.  67.  72 ;  Zeckendorf  v.  Johnson,  123  U.  S. 

2  U.  S.  R.  S.   §  1011  ;  as  amended  18  617. 
St.   at    L.   ch.  80,  p.  318;    Piquignot  v.         6  ]8  gti  &tj^  ch.  80,  p.  27  ;  Rtringfellow 

Penn.  R.  R.  Co.,  16  How.  104;  Stephens  r.  Cain,  99  U.   S.  610;  Cannon  v.   Pratt, 

v.  Mononpahela  Bank,  111  U.  S.  197.  9!)  U.  S.  619;  Gray  v.  Howe,  108  U.  S. 

8  18  St.  at  L.  p.  315,  ch.  77,  §  1.  12. 


592  WEITS   OF   ERROR   AND   APPEALS:  [CHAP.  XXX. 

judgment  of  a  Territorial  court  in  a  case  not  tried  by  a  jury.6 
The  review  in  the  Supreme  Court  of  the  United  States  of  a  judg- 
ment of  a  Territorial  court  in  a  case  not  tried  by  a  jury  can  only 
be  by  an  appeal."  No  judgment  or  decree  of  a  State  court, 
whether  at  law  or  in  equity,  can  be  reviewed  otherwise  than  by 
a  writ  of  error.8 

The  Supreme  Court  can  review  by  writ  of  error  all  fiual  judg- 
ments, and  by  appeal  all  final  decrees  in  cases  of  equity  and 
maritime  jurisdiction,  of  any  Circuit  Court,  or  of  any  District 
Court  acting  as  a  Circuit  Court,  in  civil  actions  brought  there 
by  original  process,  or  removed  there  from  courts  of  the  several 
States ;  and  all  final  judgments  of  any  Circuit  Court  in  civil 
actions  removed  there  from  any  District  Court  by  appeal  or  writ 
of  error,  where  the  matter  in  dispute,  exclusive  of  costs,  exceeds 
the  sum  or  value  of  $5,000  ;9  by  appeal,  all  final  decrees  of  any 
District  Court  in  prize  causes,  where  the  matter  in  dispute,  exclu- 
sive of  costs,  exceeds  the  sum  or  value  of  82,000,  or  where  the 
district  judge  certifies  that  the  adjudication  involves  a  question 
of  general  importance  ; 10  by  appeal,  all  final  decrees  of  any  Circuit 
Court  in  prize  causes  depending  therein  on  the  30th  day  of  June, 
1864,  in  the  same  manner  and  subject  to  the  same  conditions 
as  appeals  from  District  Courts  in  prize  causes  ; u  by  appeal,  on 
behalf  of  the  United  States,  all  final  judgments  of  the  Court  of 
Claims  adverse  to  the  United  States ;  and  by  appeal,  on  behalf  of 
the  plaintiff,  all  judgments  of  the  Court  of  Claims  in  any  case 
where  the  amount  in  controversy  exceeds  $3,000,  or  his  claim 
is  forfeited  to  the  United  States  for  fraud  ; 12  by  writ  of  error 
all  final  judgments,  and  by  appeal  all  final  decrees,  of  the 
Supreme  Court  of  the  District  of  Columbia,  in  any  case  where 
the  value  of  the  matter  in  dispute  exceeds  the  sum  or  value 
of  85,000,13  and  in  any  case  wherein  is  involved  the  validity  of 
any  patent  or  copyright,  or  in  which  is  drawn  in  question  the 
validity  of   a  treaty  or  a  statute,  or  of  an  authority  exercised 

6  18  St.  at  L.  ch.  80,  p.  27  ;  Stringfellow  »  U.  S.  R.  S.  §  695. 
v.  Cain,  99  U.  S.  610;  Cannon  v.  Pratt,  99  "  U.  S.  R.  S.  §  696. 
U.  S.  619;  Gray  v.  Howe,  108  U.  S.  12.  12  U.  S.  R.  S.  §  707. 

»  18  St.  at  L.  ch.  80,  p.  27;  Stringfellow        13  1  Supp.  U.  S.  R.  S.  419;  20  St.  at 

v.  Cain,  99  U.S.  610;  Cannon  v.  Pratt,  99  L.  ch.  99,  p.  320;  23  St.  at  L.  ch.  355, 

U.  S.  619;  Gray  v.  Howe,  108  U.  S.  12.  p.  443  ;  Baltimore  &  P.  R.  R.  Co.  v.  Hop- 

8  U.  S.  R.  S.  §  709.  kins,  130  U.  S.  210:  District  of  Columbia 

9  U.  S.  R.  S.  §§  691,  692.  v.  Gannon,  130  TJ.  S.  227. 


§  394.]     WRITS  OF  ERROR  AXD  APPEALS  TO  THE  SUPREME  COURT.     593 

under  the  United  States  ;14  by  writ  of  error  the  final  judgments 
in  all  cases  tried  before  a  jury,  and  by  appeal  all  other  judgments 
and  all  decrees  of  the  Supreme  Court  of  any  Territory,  where 
the  value  of  the  matter  in  dispute,  exclusive  of  costs,  to  be  ascer- 
tained by  the  oath  of  any  party  or  other  competent  witness, 
exceeds  $5,000,15  and  in  any  case  wherein  is  involved  the  valid- 
ity of  any  patent  or  copyright,  or  in  which  is  drawn  in  question 
the  validity  of  a  treaty  or  a  statute  of,  or  an  authority  exercised 
under  theUnited  States  ; 16  by  writ  of  error  all  judgments  in  any 
criminal  cases  where  the  accused  shall  have  been  sentenced  to 
capital  punishment,17  and- all  judgments  of  the  Supreme  Court  of 
the  Territory  of  Utah,  where  the  accused  has  been  convicted  of 
bigamy  or  polygamy  ; 18  by  writ  of  error  all  final  judgments  at 
law,  and  by  appeal  all  final  decrees  in  equity,  irrespective  of  the 
value  of  the  matter  in  dispute,  in  any  case  touching  patents  or 
copyrights,19  in  any  civil  action  brought  b}^  the  United  States  in 
a  Circuit  Court  or  a  District  Court  acting  as  a  Circuit  Court  for 
the  enforcement  of  any  revenue  law,20  in  any  civil  action  against 
any  officer  of  the  revenue  for  any  act  done  by  him  in  the 
performance  of  his  official  duty,  or  for  the  recovery  of  any 
money  exacted  by,  or  paid  to  him  which  has  been  paid  into  the 
Treasury,21  in  any  case  in  a  Circuit  Court  or  a  District  Court 
sitting  as  a  Circuit  Court  brought  on  account  of  the  deprivation 
of  any  right,  privilege,  or  immunity  secured  by  the  Constitution 
of  the  United  States,  or  of  any  right  or  privilege  of  a  citizen 
of  the  United  States,22  or  founded  upon  any  of  the  civil  rights 
laws;23  by    writ   of  error   all    final  judgments,    and    by    appeal 

14  23  St.  at  L.  ch.355,  p.  443;  Baltimore  State  court  must  be  against  tlie  right  or 
&  P.  It.  R.  Co.  v.  Hopkins,  130  U.  S.  210;  power  set  up  by  the  party  against  the 
Disk  of  Columbia  v.  Gannon,  130  U.S.  227.  laws  of  the  United  States." 

15  U.  S.  II.  S.  §§  702,  1900 ;  23  St.  at  L.  «  25  St.  at  L.  eh.  114,  p.  656. 

ch.  355,  p.  443.  is  \g  gt.  at  L.  ch.  469,  p  254  ;  1  Supp. 

16  23  St.  at  L.  ch.  355,  p.  443 ;  Smith  v.  U.  S.  R.  S.  p.  108.  No  writ  of  error  will 
Adams,  130  U.  S.  lo7 ;  Clayton  v.  Utah,  issue  to  a  judgment  where  the  accused  is 
132  U.  S.  636,  638:  "  It  will  be  observed  convicted  of  the  offence  of  cohabiting 
that  this  second  section  of  the  statute,  with  more  than  one  woman.  Snow  v. 
while  it  is  based  upon  the  general  princi-  U.  S.,  118  U.  S.  340;  Cannon  v.  U.  S.,  118 
pie  which  is  found  in  the  Act  of  Congress  U.  S.  355;  Farnsworth  v.  Montana,  129 
allowing  writs  of  error  from  this  court  to  U.  S.  104. 

the  highest  courts  of  a  State,  namely,  to  19  U.  S.  R.  S.  § 

protect  parties  against  the  exercise  of  an  *>  U.  S.  R.  S.  §  608. 

unlawful  power  on  the  part  of  the  State  21  U.  S.  R.  S.  §  698. 

authorities,   does    not   use   the    language  B  U.  S.  R.  S.  §  698. 

which  is  found  in  that  Act,  that  to  give  2S  U.  S.  II.  S.  §008;  1  Supp.  U.  S.  R.  S. 
this  court  jurisdiction  the  decision  of  the     p.  140 ;  18  St.  at  L  ch.  114,  p.  335,  §  5. 

38 


594  WRITS    OF    ERROR    AND    APPEALS.  [CHAP.  XXX. 

all  final  decrees  of  any  Circuit  Courts  in  which  there  has  been  a 
question  of  jurisdiction  of  the  court, — but  in  such  cases  where 
the  decree  or  judgment  does  not  exceed  the  sum  of  $5,000  the 
Supreme  Court  cannot  review  any  question  raised  upon  the 
record  except  such  question  of  jurisdiction  ; 2i  by  writ  of  error, 
all  final  judgments  and  decrees  in  any  suit  in  the  highest  court 
of  a  State  in  which  a  decision  in  the  suit  could  be  had,  where 
has  been  drawn  in  question  the  validity  of  a  treaty  or  statute  of, 
or  an  authority  exercised  under  the  United  States,  and  the  de- 
cision has  been  against  their  validity,  or  where  has  been  drawn 
in  question  the  validity  of  a  statute  of,  or  authority  exercised 
under  any  State,  on  the  ground  of  their  being  repugnant  to  the 
Constitution,  treaties,  or  laws  of  the  United  States,  and  the  deci- 
sion has  been  in  favor  of  their  validity,  or  where  any  title,  right, 
privilege,  or  immunity  is  claimed  under  the  Constitution,  or  any 
tieaty  or  statute  of,  or  commission  held  or  authority  exercised 
under  the  United  States,  and  the  decision  is  against  the  title, 
right,  privilege,  or  immunity  specially  set  up  or  claimed  by  either 
party,  under  such  Constitution,  treat}r,  statute,  commission,  or 
authority;25  by  writ  of  error  all  final  judgments,  and  by  appeal 
all  decrees  in  equity  in  civil  suits  before  a  Circuit  Court  held  at 
the  time  by  a  justice  of  the  Supreme  Court  and  a  Circuit  judge 
or  a  District  judge,  or  b}r  the  Circuit  judge  and  a  District  judge, 
wherein  the  judges  certify  that  their  opinions  were  opposed  upon 
an}r  question  of  law  which  occurred  on  the  trial  or  hearing  of  the 
said  suit  or  proceeding.26  When  any  question  of  law  occurs  in 
the  hearing  or  trial  of  any  criminal  proceeding  before  a  Circuit 
Court,  upon  which  the  judges  are  divided  in  opinion,  they  may 
certify  their  disagreement  and  the  point  on  which  they  disagree, 
to  the  Supreme  Court27  The  Supreme  Court  must  then  decide 
such  point,  if  properly  certified,  and  remit  its  decision  and  order 
therein  to  such  Circuit  Court,  to  be  there  entered  of  record  and 
take  effect.28  Appeals  in  habeas  corpus  proceedings  have  been 
described  in  a  preceding  chapter.29 

§  395.    Value     of    Matter     in     Dispute.  —  Where     the    right    to 
appeal  depends  on  the   value  of    the    matter  in  dispute,  such 

2*  25  St.  at  L.  ch.  236,  p.  693.  See        27  U.  S.  R.  S.  §  697.     See  §  396. 
§  393.  28  U.  S.  It.  S.  §  697. 

••*  U.  S.  R  S.  §  709.  29  See  §  368. 

26  TJ.  S.  R.  S.  §  693.     See  §  396. 


§  395.]  VALUE   OF   MATTER   IN   DISPUTE.  595 

value   must    be    estimable   in   money.1     Consequently,  in  such 
cases,  where    the    matter   in   dispute   is   the  right   to   personal 
liberty  or  the  right  to  the  custody  of  a  child,  no  appeal  or  writ 
of  error  will  lie.2     Appeals  in   habeas  corpus   proceedings    and 
the  proceedings  under  them  are  described  and  explained  in  a 
previous  section.3     The  value  of  the  matter  in  dispute  at  the 
time  of   the  entry  of  the  judgment  is  alone  to  be  considered.4 
No  interest  subsequently  accrued,5  or  right  claimed  at  the  out- 
set of  the  suit  but  abandoned  before  the  judgment  was  entered, 
can  be  taken  into  consideration.6     When  the  plaintiff  has  re- 
covered a  verdict  in  excess  of  $5,000,  he  may,  by  leave  of  the 
court,  file  before  judgment  a  remittitur  of  part  of  such  verdict, 
and  enter  judgment  for  a  sum  not  exceeding  $5,000.7     In  such  a 
case,   no  writ  of  error   can    be    had   where  the    jurisdiction    of 
the  Supreme  Court  is  dependent  upon  the  matter  in  dispute.8 
After  judgment,  a  plaintiff  cannot  deprive  his  adversary  of  the 
right  to  a  writ  of  error  by  a  release  of  part  of  such  judgment.9 
In  the  case  of  an  appeal  from  a  decree  or  writ  of  error  to  the 
judgment  of  an  appellate  court  affirming  the  judgment  of  a  court 
below  it,  where  such  judgment  of  affirmance  express^  includes 
interest  from  a  time   antecedent  to  its  entry  and  the  interest  is 
part  of  the  claim  litigated,  the  interest  is  included  in  the  compu- 
tation of  the  value  of  the  matter  in  dispute.10     If,  however,  the 
judgment  of  affirmance  is  silent  as  to  interest,  interest  is  not  in- 
cluded in  the  computation.11     The  probative  force  of  the  judg- 
ment, and  its  effect  as  an  estoppel  in  a  subsequent  suit  between 
the  same  parties  to  recover  a  larger  amount,  as  in  the  case  of  a 
judgment  in   a  suit  to  collect  a  coupon,  cannot  be  considered  as 

§  395.  »  Elgin  v.  Marshall,  106  U.S.  578;  »  Thompson  v.  Butler,  95  U.  S.  694. 

Lee  v.  Lee,  8  Pet.  44;  Barry  v.  Mereein,  s  Thompson   v.  Butler,  95  U.  S.  694; 

6  How.  103;  Pratt  v.  Fitzhugh,  1  Black,  Alabama  Gold  Life  Ins.  Co.  n.  Nichols, 

271-  109  U.    S.   232  ;   First  National  Bank  v. 

2  Lee  v.  Lee,  8  Pet.  44;  Pratt  v.  Fitz-  Redick,  110  U.  S.  224. 

hugh,  1  Black,  271 ;  Barry  v.  Mereein,  5  9  New  York  Elevated  Railroad  Com- 

How.  103.  pany  p.  Fifth  National  Bank,  118  U.  S. 

3  §  368.  608. 

4  Bank  of  U.  S.  p.  Daniel,  12  Pet.  32;  »  Zeckendorf  v.   Johnson,    123   U.   S. 
Walker  v.  U.  S.,  4  Wall.  163.  617  ;   The  Patapsco,  12   Wall.  451 ;  The 

Walker  v.  U.  S.,  4  Wall.  163  ;  Knapp  Bio  Grande,  19  Wall.  178. 

v  Banks,  2  How.  73  ;  W.U.Tel.  Co.  v.  «  Railroad    Company   v.   Trook,   100 

Rogers,  93  U.  S.  505;  Thompson  v.  But-  U.  S.  112;  District  of  Columbia  v.  Gan- 

ler,  95  U.  S.  694.  non,  130  U.  S.  227. 

0  Tintsman    v.    National    Bank,    100 
U.  S.  6. 


590 


WRITS    OF   ERROR   AND   APPEALS. 


[CHAP.  XXX. 


adding  to  the  value  of  the  matter  in  dispute,12  When  the 
object  of  a  suit  is  to  apply  property  worth  more,  to  the  pay- 
ment of  a  debt  worth  less  than  the  jurisdictional  amount,  the 
amount  of  the  debt,  not  the  value  of  the  property,  is  the  test  of 
jurisdiction.13  In  a  suit  to  establish  the  right  to  an  office,  the 
aggregate  amount  of  the  salary  for  the  unexpired  term  claimed 
by  the  appealing  party  is  the  value  of  the  matter  in  dispute.1*  In 
a  suit  to  recover  the  possession  of  leasehold  premises,  the  amount 
expended  by  the  lessee  in  the  improvement  of  the  premises  may  be 
considered  in  estimating  the  value  of  the  matter  in  dispute.15  In 
a  suit  for  an  injunction,  the  value  of  the  object  sought  to  be 
gained  by  the  bill,  not  the  amount  of  the  plaintiff's  damages,  is 
the  value  of  the  matter  in  dispute.16  When  a  number  of  plain- 
tiffs claiming  under  the  same  title  and  having  a  common  interest 
in  the  relief  sought,  unite  in  a  suit,  the  adverse  party  having 
no  interest  in  the  apportionment  or  distribution  of  the  amount 
recovered  among  them,  their  united  interests  constitute  the 
matter  in  dispute.17  When  a  suit  is  brought  by  one  for  himself 
and  all  others  jointly  interested,  the  aggregate  interest  of  those 
who  oin  with  him,  not  that  of  the  whole  class,  constitutes  the 
disputed  matter.18  When  several  persons  join  in  one  suit  to 
assert  separate  and  distinct  interests,  and  these  interests  alone 
are  in  dispute,  their  interests  upon  appeal  are  considered  sep- 
arately, and  the  amount  of  the  interest  of  each  is  the  limit  of 
the  appellate  jurisdiction.19  When  the  value  of  the  matter  in 
dispute  does  not  appear  upon  the  record,  affidavits  upon  this 
point  may  be  filed  either  in  the  Circuit  Court  or  in  the  Supreme 


12  Elgin  i'.  Marshall,  106  U.  S.  578, 
580  ;  Bruce  v.  Manchester  &  K.  R.  R.  Co., 
117  U.  S.  514. 

is  Gibson  v.  Shufeldt,  122  U.  S  27,  29, 
per  Gray,  J.  ;  Peyton  v.  Robertson,  9 
Wheat.  527 ;  Farmers'  Bank  of  Alexan- 
dria v.  Hooff,  7  Pet.  168 ;  Ross  v.  Prentiss, 
3  How.  771. 

"  U.  S.  i\  Addison,  22  How.  174; 
Smith  v.  Whitney,  116  U.  S.  167. 

15. Harris  v.  Barber,  129  U.   S.  366. 

is  Miss.  &  Mo.  R.  R.  Co.  v.  Ward,  2 
Black,  485  ;  Market  Company  v.  Hoff- 
man, 101  U.  S.  112. 

«  Gibson  v.  Shufeldt,  122  U.  S.  27,  30, 
per  Gray,  J. ;  Estes  v.  Gunter,  121  U.  S. 
183;    Shields  v.  Thomas,   17   How.    3; 


Market  Company  v.  Hoffman,  101  U.  S. 
112;  Davies  v.  Corbin,  112  U.  S.  36; 
Friend  v.  Wise,  111  U.  S.  797. 

i8  Bruce  v.  Manchester  &  K.  R.  R.  Co., 
117  U.  S.  514,  516. 

is  Gibson  v.  Shufeldt,  122  U.  S.  27,  34, 
per  Gray,  J. ;  Seaver  v.  Bigelows,  5  Wall. 
208 ;  Russell  v.  Stansell,  105  U.  S.  303 ; 
Chatfield  v.  Boyle,  105  U.  S.  231  ;  Adams' 
p.  Crittenden,  100  U.  S.  576;  Schwed  v. 
Smith,  106  U.  S.  188;  F.  L.  &  Tr.  Co.  v. 
Waterman,  106  U.  S.  265;  Hassall  v. 
Wilcox,  115  U.  S.  598;  Fourth  National 
Bank  v.  Stout,  113  U.  S.  684;  Stewart 
v.  Dunham.  115  U.  S.  61 ;  Paving  Co.  v. 
Mulford,  100  U.  S.  147  ;  Ex  parte  Phoenix 
Insurance  Co.,  117  U.  S.  367. 


§  396.]  CERTIFICATE   OF   DIVISION   OF   OPINION.  597 

Court.20     When  filed  in  the  Circuit  Court,  they  must  be  sent  up 
with  the  record.21 

§  396.  Certificate  of  Division  of  Opinion.  —  The  division  of 
opinion  which  will  warrant  the  review  of  a  case  by  the  Su- 
preme Court  in  civil  or  criminal  cases  must  be  on  one  or  more 
separate  points  of  law,1  not  questions  of  fact  nor  of  mixed  law 
and  fact,2  nor  resting  in  the  discretion  of  the  court.3  Nor  can  the 
whole  case  be  thus  certified  to  the  Supreme  Court  for  decision.4 
For  example,  the  Supreme  Court  will  not  thus  determine 
whether  one  patent  is  an  infringement  of  another,5  nor  whether 
certain  facts  constitute  fraud.6  It  has  been  intimated  that  no 
question  of  practice  Avill  be  thus  determined.7  But  the  right  to 
the  continuance  of  an  interlocutory  injunction  has  thus  been  de- 
termined ; 8  and  although  a  division  of  opinion  on  a  motion  for 
a  new  trial  cannot  ordinarily  be  thus  certified  to  the  Supreme 
Court,9  it  may  be  if  the  parties  file  a  stipulation  that  the  case 
stand  as  if  a  judgment  had  been  given  on  the  exceptions.10  The 
questions  as  to  which  the  disagreement  is  certified  must  have 
actually  arisen,  and  not  be  hypothetical.11  If  they  are  not  clearly 
expressed,  the  Supreme  Court  will  decline  to  consider  the  case 
on  that  ground  alone.12  If  it  appears  that  a  decision  of  the 
questions  certified  will  not  affect  the  final  result,  the  Supreme 

20  Wilson  v.  Blair.  119  U.  S.  387;  Street  *  Saunders  v.  Gould,  4  Pet.  392;  U.  S. 

v.  Ferry,  119  U.  S.  385;  Gibson  v.  Shu-  v.  Bailey,   9  Pet.  267;  Harris  v.   Elliott, 

feldt,  122  U.  S.  27.  1.0  Pet.  25;  Waterville  v.  Van  Slyke,  116 

2i  Wilson  r.  Blair,  119  U.S.  387;  Davie  U.  S.  699;  Jewell  v.  Knight,  123  U.  S. 

v.  Heyward,  33  Fed.  R.  93.  426 ;  U.  S.  v.  Hall,  131  U.  S.  50. 

§   396.    J    Wayman    v.    Southard,    10  5  Wilson   v.    Barnum,   8    How.   258  ; 

Wheat.  1 ;  Daniels  v.  Railroad  Company,  California  A.    S.  P.  Co.  v.   Molitor,  113 

3  Wall.  250;  Havemeyer  v.  Iowa  County,  U.  S.  609;  Waterville  v.  Van  Slyke,  116 

3  Wall.  294  ;  Williamsport  Bank  v.  Knapp,  U.  S.  699. 

119  U.S.  357;  Jewell  v.  Knight,  123  U.S.  6  Jewell   v.   Knight,   123   U.    S.    426- 

426 ;  Smith  v.  Craft,  123  U.  S.  436.  Smith  v.  Craft,  123  U.  S.  436. 

2  Wilson   v.    Barnum,    8    How.    258;  '  Dovereaux  v.  Marr,  12  Wheat.  212 ; 

Dennistoun    v.    Stewart,    18    How.  565 ;  Bank  of  U.  S.  v.  Green,  0  Pet.  26;  Davis 

Brobst  v.   Brobst,  4  Wall.  2;    Weetli  v.  v.  Braden,  10  Pet.  286;  Packer  v.  Nixon, 

N.  E.  Mortgage  Co.,  106  U.  S.  605 ;  Call-  10  Pot.  408. 

fornia  A.  S.  P.  Co.  v.  Molitor,  113  U.  S.  8  u.  S.  v.  Chicago,  7  How.  185. 

609  ;  Waterville  v.  Van  Slyke,  116  U.  S.  »  U.  S.  v.  Daniel,  6  Wheat.  542  ;  Jones 

699;    Jewell   v.   Knight,  123  U.  S.  426;  v.  Van  Zandt,  5  How.  215. 

U.    S.  v.   Hall,    131   U.   S.    50;    U.  S.  v.  w  Grant  v.  Raymond,  6  Pet.  218,  220. 

Perrin,  131  U.  S.  55.  n  Havemeyer V.  Iowa  County,  3  Wall. 

8  Wiggins  v.  Gray,  24  How.  303  ;   Da-  294  ;  Pelham  v.  Rose,  9  Wall.  103. 

vis  v.  Braden,  10  Pet.  286;  U.  S.  v.  Dan-  »  Sadler  v.  Hoover,  7  How.  646;  Per- 

iel,   6    Wheat.    542;    U.  S.  v.  Hamilton,  kins  v.  Hart,  11  Wheat.  237. 
109  U.  S.  63. 


598  WRITS   OF   ERROR   AND   APPEALS.  [CHAP.  XXX. 

Court  will  decline  to  consider  them.13  When  it  is  obvious  that 
the  division  was  pro  forma,  the  Supreme  Court  may  refuse  to 
consider  the  question  raised.14 

§  397.  Right  to  Appeal  or  bring  Error.  —  All  parties  Oil  the 
record  who  are  injuriously  affected  by  a  final  judgment  or  de- 
cree may  appeal  or  sue  out  a  writ  of  error  in  a  case  of  which  the 
Supreme  Court  has  jurisdiction.  An  intervenor  has  the  right  of 
appeal.1  A  receiver  may  appeal  from  so  much  of  a  decree  in 
the  suit  wherein  he  was  appointed  as  injuriously  affects  him 
individually.2 

All  parties  against  whom  a  joint  judgment  or  joint  decree  is 
entered  must  join  in  the  writ  of  error  or  appeal,  unless  one  or 
more,  when  asked,  refuse  so  to  do,  and  such  request  and  refusal 
appears  upon  the  record.3  There  are  two  reasons  for  this :  that 
the  successful  party  may  be  at  liberty  to  proceed  in  the  enforce- 
ment of  his  judgment  or  decree  against  the  parties  who  do  not 
desire  to  have  it  reviewed;  and  that  the  appellate  tribunal  shall 
not  be  required  to  decide  a  second  or  third  time  the  same  ques- 
tion on  the  same  record.4  The  formal  practice  on  a  writ  of  error 
in  such  a  case  is  for  the  party  who  wishes  the  benefit  of  the  writ 
to  obtain  a  summons,  bringing  the  party  jointly  interested  with 
him  before  the  court,  and  if  the  latter  then  refuses  to  join  in  the 
writ  of  error,  to  enter  an  order  or  judgment  of  severance,  where- 
by the  moving  party  can  sue  out  the  writ  alone.5  Thereupon 
the  party  who  refuses  to  join  is  estopped  from  taking  out  a  writ 
of  error,  and  the  court  below  can  execute  the  judgment  so  far  as 
it  can  be  executed  against  him,  despite  a  supersedeas  obtained 
by  the  other.6  Now,  however,  such  a  technical  proceeding  is 
no  longer  necessary ;  and  when  the  record  shows  that  one  of  the 
parties  jointly  affected  has  been  notified  in  writing  to  appear  and 
join  in  the  appeal  or  writ  of  error,  and  has  failed  to  appear,  or 

13   U.    S.    v.    Buzzo,    18    Wall.    125;  414;    Owings  v.  Kincannon,  7  Pet.  399; 

Smith  v.  Ely,  15  How.  137.  Heirs  of  Wilson  v.  Life  &  Fire  Insurance 

w  Webster   v.    Cooper,   10    How.   54 ;  Co.,  12  Pet.  140. 

Nesmith  v.  Sheldon,  6  How.  41 ;   U.  S.  v.  *  Masterson  v.  Herndon,  10  Wall.  416. 

Chicago,  7  How.  185 ;  Ex  parte  Gordon,  5  2  Brooke's  Abr.  238,  tit.   Sommons 

1    Pdack,  503.   But  see  U.  S.  v.  Stone,  14  and   Severance ;  Todd  v.  Daniel,  16  Pet. 

Pet.  524.  521  ;  Masterson  v.  Herndon,  10  Wall.  416, 

§  397.  *  Ex  parte  Jordan,  94  U.  S.  248.  417,  418. 

2  Hinckley  «;.  Gilman,  C.  &  S.  R.  R.  6  2  Brooke's  Abr.  238,  tit.  Sommons 
Co.,  94  U.  S.  467.  and   Severance  ;   Masterson  v.  Herndon, 

3  Masterson  v.  Herndon,  10  Wall.  416;  10  Wall.  416. 
Williams  u.  Bank  of  U.  S.,  11  Wheat. 


§  397.]  LIGHT   TO   APPEAL   OR   BRING   ERROR.  599 

appeared  and  refused  to  join,  the  court  should  on  that  ground 
grant  an  appeal  or  writ  as  to  his  own  interest  to  the  party  who 
seeks  it.7  A  statement  in  the  petition  for  the  appeal,  that  the 
other  party  jointly  affected  refuses  to  join  in  the  appeal,  is  in- 
sufficient.8 

A  defendant  whose  interest  is  separate  from  that  of  the  others 
may  appeal  or  bring  error  without  them.9  Where  judgment  in 
an  action  of  trespass  was  rendered  against  one  defendant  by  de- 
fault, and  against  the  other  upon  a  plea,  it  was  held  that  the 
latter  could  bring  a  writ  of  error  alone.10 

Whenever  any  party  to  a  judgment  or  decree  in  a  Circuit 
Court  dies  before  the  time  allowed  for  taking  an  appeal  or  bring- 
ing a  writ  of  error  has  expired,  it  is  not  necessary  to  revive  the 
suit  by  any  formal  proceeding.11  If  one  of  several  plaintiffs  or 
defendants  dies  before  or  after  an  appeal  is  taken,  and  the  cause 
of  action  survives  to  the  rest,  the  survivors  have  the  right  to 
proceed  alone,  unless  the  representatives  of  the  deceased  apply 
to  join  with  them.13  The  representative  of  the  deceased  party 
may  file  in  the  clerk's  office  a  certified  copy  of  his  appointment, 
and  thereupon  may  enter  an  appeal  or  bring  writ  of  error,  as  the 
deceased  party  might  have  done.13  Where  the  party  in  whose 
favor  such  a  judgment  or  decree  is  taken  dies  before  appeal 
taken  or  writ  of  error  brought,  the  statute  provides  that  notice 
to  his  representatives  shall  be  given  from  the  Supreme  Court,  as 
provided  in  case  of  the  death  of  a  party  after  appeal  taken  or 
writ  of  error  brought.14  The  rule  of  the  Supreme  Court,  to 
which  reference  is  made,  is  as  follows  :  "  1.  Whenever,  pending 
a  writ  of  error  or  appeal  in  this  court,  either  party  shall  die,  the 
proper  representatives  in  the  personalty  or  realty  of  the  deceased 
party,  according  to  the  nature  of  the  case,  may  voluntarily  come 
in  and  be  admitted  parties  to  the  suit,  and  thereupon  the  case 
shall  be  heard  and  determined  as  in  other  cases  ;  and  if  such 
representatives  shall  not  voluntarily  become  parties,   then  the 


*  Masterson  v.  Herndon,  10  Wall.  416;  1  Supp.  U.  S.  R.  S.   177;  13  St.  at  L. 

O'Dowd  v.  Russell,  14  Wall.  402.  473. 

8  Masterson  v.  Herndon,  10  Wall.  416.  12  Moses   v.   Wooster,  115   U.  S.  285; 

9  Forgay    v.    Conrad,   6    How.   201  ;  U.  S.  R.  S.  §  956 

Germain  v.  Mason,  12   Wall.  259  ;  Han-  13  Act  of  March  3,  1875,  ch.  137,  §  9; 

rick  v.  Patrick,  119  U.  S.  166.  1  Supp.  U.  vS.  R.  S.  177 ;  18  St.  at  L.  473. 

">  Macker  v.  Thomas,  7  Wheat.  530.  14  Act  of   March  3.  1875,  ch.  137,  §  9; 

11  Act  of  March  3,  1875,  ch.  137,  §  9;  1  Supp.  U.  S.  R.  S. ;  18  St.  at  L.  473. 


600  WRITS   OF   ERROR   AND   APPEALS.  [CHAP.  XXX. 

other  party  may  suggest  the  death  on  the  record,  and  thereupon, 
on  motion,  obtain  an  order  that  unless  such  representatives  shall 
become  parties  within  the  first  ten  days  of  the  ensuing  term,  the 
party  moving  for  such  order,  if  defendant  in  error,  shall  be  en- 
titled to  have  the  writ  of  error  or  appeal  dismissed  ;  and  if  the 
party  so  moving  shall  be  plaintiff  in  error,  he  shall  be  entitled  to 
open  the  record,  and  on  hearing  have  the  judgment  or  decree  re- 
versed, if  it  be  erroneous  :  provided,  however,  that  a  copy  of  every 
such  order  shall  be  printed  in  some  newspaper  of  general  circula- 
tion within  the  State,  Territory,  or  district  from  which  the  case 
is  brought,  for  three  successive  weeks,  at  least  sixty  days  before 
the  beginning  of  the  term  of  the  Supreme  Court  then  next  en- 
suing. 2.  When  the  death  of  a  party  is  suggested,  and  the 
representatives  of  the  deceased  do  not  appear  by  the  tenth  day 
of  the  second  term  next  succeeding  the  suggestion,  and  no  meas- 
ures are  taken  by  the  opposite  party  within  that  time  to  compel 
their  appearance,  the  case  shall  abate.  3.  When  either  party  to 
a  suit  in  a  Circuit  Court  of  the  United  States  shall  desire  to 
prosecute  a  writ  of  error  or  appeal  to  the  Supreme  Court  of  the 
United  States,  from  any  final  judgment  or  decree,  rendered  in  the 
Circuit  Court,  and  at  the  time  of  suing  out  such  writ  of  error 
or  appeal  the  other  party  to  the  suit  shall  be  dead  and  have  no 
proper  representative  within  the  jurisdiction  of  the  court  which 
rendered  such  final  judgment  or  decree,  so  that  the  suit  cannot 
be  revived  in  that  court,  but  shall  have  a  proper  representative 
in  some  State  or  Territory  of  the  United  States,  the  party  de- 
siring such  writ  of  error  or  appeal  may  procure  the  same,  and 
may  have  proceedings  on  such  judgment  or  decree  superseded  or 
stayed  in  the  same  manner  as  is  now  allowed  by  law  in  other 
cases,  and  shall  thereupon  proceed  with  such  writ  of  error  or 
appeal  as  in  other  cases.  And  within  thirty  days  after  the  com- 
mencement of  the  term  to  which  such  writ  of  error  or  appeal  is 
returnable,  plaintiff  in  error  or  appellant  shall  make  a  suggestion 
to  the  court,  supported  by  affidavit,  that  the  said  party  was  dead 
when  the  writ  of  error  or  appeal  was  taken  or  sued  out,  and  had 
no  proper  representative  within  the  jurisdiction  of  the  court 
which  rendered  said  judgment  or  decree,  so  that  the  suit  could 
not  be  revived  in  that  court,  and  that  said  party  had  a  proper 
representative  in  some  State  or  Territory  of  the  United  States, 
and  stating  therein  the  name  and  character  of  such  representa- 


§  398.]         LIMITATION    OF   APPEALS   AND    WRITS   OF   ERROR.  601 

tive,  and  the  State  or  Territory  in  which  such  representative 
resides  ;  and,  upon  such  suggestion,  he  may,  on  motion,  obtain 
an  order  that,  unless  such  representative  shall  make  himself  a 
party  within  the  first  ten  days  of  the  ensuing  term  of  the  court, 
the  plaintiff  in  error  or  appellant  shall  be  entitled  to  open  the 
record,  and,  on  hearing,  have  the  judgment  or  decree  reversed, 
if  the  same  be  erroneous :  provided,  however,  that  a  proper  cita- 
tion reciting  the  substance  of  such  order  shall  be  served  upon 
such  representative,  either  personally  or  by  being  left  at  his 
residence,  at  least  sixty  days  before  the  beginning  of  the  term 
of  the  Supreme  Court  then  next  ensuing:  and  provided,  also, 
that  in  every  such  case,  if  the  representative  of  the  deceased 
party  does  not  appear  by  the  tenth  day  of  the  term  next  suc- 
ceeding such  suggestion,  and  the  measures  above  provided  to 
compel  the  appearance  of  such  representative  have  not  been 
taken  within  the  time  as  above  required,  by  the  opposite  party, 
the  case  shall  abate :  and  provided,  aho,  that  the  said  represent- 
ative may  at  any  time  before  or  after  said  suggestion  come  in 
and  be  made  a  party  to  the  suit,  and  thereupon  the  case  shall 
proceed,  and  be  heard  and  determined  as  in  other  cases."15 

A  party  cannot  appeal  from  a  decree  which  does  not  injuri- 
ously affect  him  ; 16  nor  from  a  decree  entered  upon  his  consent.17 
A  party  may  appeal  from  a  decree  entered  pro  confesso.18  The 
right  to  appeal  or  bring  error  has  been  held  not  waived  by  the 
enforcement  of  the  judgment  or  decree,19  nor  by  compliance  with 
the  same.20 

§  398.  Time  -within  -which  Appeal  or  "Writ  of  Error  must  be 
taken.  —  The  Revised  Statutes  provide  that  an  appeal  in  prize 
causes  must  be  taken  within  thirty  days  after  the  rendering  ot 
the  decree,  but  the  Supreme  Court  may  allow  an  appeal  in  such 
a  cause,  if  it  appears  that  the  notice  of  appeal  or  of  intention  to 
appeal  was  filed  in  the  office  of  the  clerk  of  the  District  Court 
within  such  thirty  days.1 

No  judgment,  decree,  or  order  of  a  Circuit  or  District  Court, 

15  Supreme  Court  Rule  15.  w  TJ.  S.  v.  Dashiel,  8  Wall.  C,SS  ;    Mer- 

16  Crawshay  v.  Soutter,  6  Wall.  739.  riam   v.    Haas,   8    Wall.  687  ;    Embry  v. 

17  Pacific    Railroad   v.    Ketehum,    101  Palmer,  107  U.  S.  3;  Erwin  v.  Lowrv,  7 
U.  S.  289 ;  Crawshay  v.  Soutter,  6  Wall.  How.  172. 

739.  20  O'Hara  v.  MacConnell,  03  U.  S.  150 

'8  O'Hara  v  MacConnell,  93  U.  S.  150;  §  398.  *  U.  S.  R.  S.  §  1009. 

Thomson  v.  Wooster,  114  U.  S.  104 


602 


WRITS   OF   ERROR   AND   APPEALS. 


[CHAP.  XXX. 


in  any  civil  action  at  law  or  in  equity,  can  be  reviewed  by  the 
Supreme  Court,  unless  the  writ  of  error  is  brought  or  the  appeal 
taken  within  two  years  after  the  entry  of  such  judgment,  decree, 
or  order  ;  but  where  a  party  entitled  to  prosecute  a  writ  of  error 
or  take  an  appeal  is  an  infant,  insane,  or  imprisoned,  such  writ  of 
error  may  be  prosecuted,  or  such  appeal  taken  within  two 
years  after  the  judgment,  decree,  or  order,  exclusive  of  the  term 
of  such  disability.2  The  time  does  not  begin  to  run  till  the 
judgment,  decree,  or  order  is  actually  entered  or  filed,  and  when 
the  judge's  signature  is  required,  not  till  it  is  signed,3  although 
it  is  dated  as  of  a  prior  day.4  A  decision  containing  directions 
for  a  decree  is  not  considered  as  a  decree.5  The  writ  of  error  is 
not  brought  till  it  is  filed  in  the  Supreme  Court.6  So,  when  it  is 
tested  and  issued  within  the  two  years,  but  not  filed  till  after- 
wards, it  is  brought  too  late.7  An  appeal  is  taken  when  it  is 
allowed,8  although  security  is  not  filed  till  after  the  statutory 
limit.9  This  limitation  does  not  apply  to  writs  of  error  coram 
nobis.10  No  writ  of  error  to  a  judgment  of  conviction  of  a  crime 
the  punishment  of  which  is  death  can  be  sued  out  or  granted, 
unless  a  petition  therefor  is  filed  with  the  clerk  of  the  court  in 
which  the  trial  was  held  during  the  same  term  as  the  trial,  or 
within  such  time,  not  exceeding  sixty  days  after  the  expiration  of 
such  term,  as  the  court  may  for  cause  allow  by  order  entered  of 
record.11  The  right  to  appeal  from  a  decree  dismissing  a  cross-bill 
does  not  ordinarily  exist,  nor  the  time  begin  to  run,  until  the  en- 
try of  a  final  decree  disposing  of  the  whole  matter  in  litigation.12 

§  399.  Writs  of  Error.  —  A  writ  of  error  issues  from  the  clerk's 
office  of  the  Supreme  Court,  or  of  the  Circuit  Court.1  The  writ 
issues  in  the  name  of  the  President  of  the  United  States,2  is  tested 
of  the  date  of  issue3  in  the  name  of  the  Chief  Justice  of  the  United 


2  U.  S.  R.  S.  §  1008. 

3  Rubber  Co.  v.  Goodyear,  6  Wall. 
153;  DelValle  v.  Harrison,  93  U.  S.  233  ; 
Polleys  v.  Black  River  Imp.  Co.,  113 
U.  S.  81 ;  Radford  v.  Folsom,  123  U.  S. 
725. 

4  Rubber  Co  v,  Goodyear,  6  Wall. 
153. 

5  U.  S.  v.  Gomez,  1  Wall.  600.  But 
see  Silsby  v.  Foote,  20  How.  200:  Fair- 
banks v.  Amoskeag  Nat.  Bk.  32  Fed.  R. 
572. 

6  Brooks  v  Norris,  11  How.  204. 


7  Brooks  v  Norris,  11  How.  204; 
Mussina  v.  Cavazos,  6  Wall.  355,  360; 
Scarborough  v.  Pargoud,  108  U.  S.  567. 

8  The  Dos  Hermanos,  10  Wheat.  306. 

9  The  Dos  Hermanos,  10  Wheat.  306. 
10  Strode   v.  The   Stafford  Justices,  1 

Brock.  162.     See  §  379. 

»  25  St.  at  L.  eh.  114,  §  5,  p.  656. 

M  Winters  v.  Ethell,  132  U.  S.  207. 

§  399.  »  U.  S.  R.  S.  §  1004. 

2  Supreme  Court  Rule  5 

»  U.  S.  R.  S.  §  912  ;  Atherton  v.  Fowler, 
91  U.  S  143. 


§  399.]  WRITS    OF   ERROR.  603 

States,  or,  when  that  office  is  vacant,  in  the  name  of  the  associ- 
ate justice  next  in  precedence,4  —  that  is,  with  the  oldest  com- 
mission,5—  and  bears  the  seal  of  the  court  whose  clerk  issues 
it,  and  is  signed  by  such  clerk.6  The  writ  is  directed  to  the 
clerk  of  the  court  whose  proceedings  it  is  intended  to  review, 
and  directs  such  court  to  send  up  under  its  seal  to  the  Supreme 
C®urt  the  record  and  process  for  inspection.7  The  return  day  of 
the  writ  should  be  the  first  day  of  the  next  term  of  the  Supreme 
Court,  when  final  judgment  was  rendered  more  than  thirty  days 
previously,  and  the  writ  of  error  and  citation  were  issued  before 
that  day.8  Otherwise,  the  return  day  should  be  the  third  Mon- 
day of  the  next  term.9  The  writ  is  a  writ  of  the  Supreme  Court, 
although  issued  from  the  clerk's  office  of  the  Circuit  Court.10 

The  Supreme  Court  majr,  at  any  time,  in  its  discretion  and 
with  or  without  terms,  allow  an  amendment  of  a  writ  of  error, 
when  there  is  a  mistake  in  the  teste,  or  a  seal  is  wanting,  or  the 
writ  is  made  returnable  on  a  wrong  day,  or  when  the  statement 
of  the  title  or  the  parties  is  defective,  if  such  defect  can  be  reme- 
died by  reference  to  the  accompanying  record,  and  in  all  other 
particulars  of  form  ;  provided  the  defect  has  not  prejudiced, 
and  the  amendment  will  not  injure,  the  defendant  in  error.11  A 
high  authority  —  Judge  Curtis  —  has  said  of  the  statute  author- 
izing such  amendments:  "It  is  difficult  to  see,  in  reading  it, 
what  defect  cannot  now  be  amended  in  the  discretion  of  the 
court."  12 

A  writ  of  error  to  a  Circuit  or  District  Court  need  not  be  al- 
lowed by  any  judge.13  It  is  the  usual  practice,  however,  to  file 
a  petition  for  the  writ. 

The  writ  is  served  by  lodging  a  copy  with  the  clerk  of  the 
court  to  which  it  is  directed.14  It  must  be  served  before  its  re- 
turn day.15  A  citation  addressed  to  the  defendants  in  error,16 
and  signed  by  a  judge  of  the  court  to  which  the  writ  is  ad- 
dressed, or  any  justice  of  the  Supreme  Court,17  must  be  served 
upon  them  at  least  thirty  days  before  the  commencement  of  the 

*  U.  S.  R.  S.  §  911.  12  Curt.  Jur.  U.  S.  Courts,  87. 

6  U.  S.  R.  S.  §  674.  w  Davidson  v.  Lanier,  4  Wall.  447. 

6  U.  S.  R.  S.  §§  911,  1004.  14  Davidson  v.  Lanier,  4  Wall.  447. 

7  See  Forms  XXII.  and  XXIII.  15  Wood  v.  Lide,  4  Cranch,  180;  Pick- 

8  Supreme  Court  Rule  8.  ett  v.  Legerwood,  7  Pet.  144. 

9  Supreme  Court  Rule  8.  16  Peale  v.  Phipp9,  8  How.  256;  Bigler 
i°  Mussina  v.  Cavazos,  6  Wall.  355.  v.  Waller,  12  Wall.  142. 

«  U.  S.  R.  S.  §  1005.  «  Sagev.  Railroad  Co.,  90  U.  S.  712. 


604  WRITS   OF   ERROR    AND    APPEALS.  [CHAP.  XXX. 

next  terra,  if  that  is  practicable.18  Otherwise,  the  case  cannot  be 
argued  against  their  objection  till  at  least  thirty  days  after  ser- 
vice of  the  citation.19  Service  of  the  citation  may  be  made  upon 
the  attorney  of  the  defendants  in  error  in  the  suit  below,20  even 
though  he  has  been  paid  his  fee  and  discharged  from  all  further 
duty.21  A  failure  to  serve  the  citation  during  the  term  to  which 
the  writ  of  error  is  returnable,  is  a  ground  for  dismissing  the  case.22 
A  general  appearance  in  the  Supreme  Court  for  a  term  without 
moving  to  dismiss  is  a  waiver  of  service  of  the  citation,  but  not  a 
waiver  of  a  motion  to  dismiss  the  case  upon  another  ground.23 

§  400.  Security  on  Writ  of  Error  or  Appeal.  —  The  Revised 
Statutes  provide  that  every  judge  or  justice  signing  a  citation 
or  any  writ  of  error  shall,  except  in  cases  brought  up  by  the 
United  States  or  b}?  direction  of  an}'  department  of  the  govern- 
ment, in  which  case  none  is  required,  take  good  and  sufficient 
security  that  the  plaintiff  in  error  shall  prosecute  his  writ  or 
appeal  to  effect,  and  if  he  fail  to  make  his  plea  good  shall  answer 
all  costs.1  This  provision  is  merely  directory,  and  an  omission  to 
take  a  bond  does  not  avoid  the  writ  of  error;2  but  on  a  motion 
to  dismiss  the  case  on  that  ground  an  opportunity  to  file  a  bond 
will  be  allowed  the  plaintiff  in  error.3  The  judge  cannot  delegate 
the  approval  of  the  bond  to  the  clerk.4  The  judge  may  approve 
the  bond  out  of  court.5  All  the  appellants  or  plaintiffs  in  error 
need  not  join  in  the  bond.6  The  bond  must,  however,  be  pay- 
able to  the  defendants  in  error  or  appellees.7  If  the  sole  paj-ee 
is  a  person  not  a  defendant  in  error  or  appellee,  the  appeal  will 
be  dismissed.8  Where  the  proceeding  is  in  the  name  of  a  State 
at  the  relation  of  an  individual,  the  bond  may  be  payable  in  the 
alternative  to  either  the  State  or  the  relator,  and  either  may 
enforce  it.9     No  security  is  required  upon  a  writ  of  error  to  the 

is  U.  S.  R.  S.  §§  997,  999 ;   National  §  400.  *  U.  S.  R.  S.  §  1000. 

Bank  v.  Bank  of  Commerce,  99  U.  S.  608.  2  Martin    v.    Hunter,  1    Wheat.    304  ; 

19  National  Bank  v.  Bank  of  Commerce  Davidson  v.  Lanier.  4  Wall.  447  ,  Seymour 
99  U.  S.  608.  v.  Freer,  5  Wall.  822. 

20  Bacon  v.  Hart.  1  Black,  38;  Bigler  3  Davidson   v.   Lanier,  4  Wall.   447; 
v.  Waller,  12  Wall.  142.  Seymour  ».  Freer,  5  Wall.  822. 

21  U.  S.  v.  Curry,  6  How.  106.  4  O'Reilly  v.  Edrington,  96  U.  S.  724  ; 

22  Hewitt    v.  Filbert,   116  U.   S.   142;  National  Bank  v.  Omaha,  96  U.  S.  737. 
Radford  v.  Folsom,  123  U.  S.  725.  5  Hudgins  v.  Hemp,  18  How.  530. 

23  U.S.  )\Armejo,131U.S.,App.lxxxii.,  6  Brockett  v.   Brockett,   2  How.  238. 
cited,  123  U.  S.  727 ;  Pierce  v.  Cox,  9  Wall.  7  Bigler  v.  Waller,  12  Wall.  142. 
786;  Buckingham  v.  McLean,  13  How.  8  Davenport  v.  Fletcher,  16  How.  142. 
150;  Radford  v.  Folsom,  123  U.  S.  725.             9  Spalding  v.  People,  2  How.  66. 


§  401.]  APPEALS.  COS 

judgment  of  conviction  of  a  capital  crime  in  a  court  of  the 
United  States.10 

§  401.  Appeals.  —  Unlike  a  writ  of  error,  an  appeal  must  be 
allowed  by  a  judge  who  has  power  to  sign  a  citation.1  An  ap- 
proval of  a  bond  on  appeal  is  equivalent  to  the  allowance  of  an 
appeal.2  A  mandamus  will  be  granted  to  compel  a  judge  to 
allow  an  appeal  in  a  proper  case.3  An  appeal  may  be  taken  in 
open  court  at  the  term  at  which  the  decree  was  rendered.4  In 
such  a  case  an  entry  of  the  allowance  of  the  appeal  should  be 
made  in  the  minutes.5     Then,  no  citation  is  necessary.6 

Appeals  from  the  Court  of  Claims  must  be  allowed  by  the  court 
if  in  session  ;  in  vacation,  by  the  chief  justice  of  that  court.7 
The  limitation  of  time  for  granting  such  an  appeal  ceases  to  run 
from  the  time  an  application  is  made  for  its  allowance.8  Appeals 
from  the  Court  of  Claims  are  heard  upon  the  following  record,  and 
no  other:  A  transcript  of  the  pleadings:  the  final  judgment  or 
decree  ;  such  interlocutory  orders,  rulings,  judgments,  and  decrees 
as  are  necessary  to  a  proper  review  of  the  case  ;  and  a  finding  in 
the  nature  of  a  special  verdict  by  the  Court  of  Claims  of  the  facts 
established  by  the  evidence,  but  not  the  evidence  establishing 
them  ;  and  a  separate  statement  of  the  conclusions  of  law  upon 
such  facts  upon  which  that  court  founds  its  judgment  or  de- 
cree.9 The  finding  of  facts  and  conclusions  of  law  must  be  cer- 
tified to  the  Supreme  Court  as  part  of  the  record  below.10  Special 
rules  regulate  the  practice  on  appeals  from  orders  upon  writs  of 
habeas  corpus.11 

Otherwise,  appeals  are  subject  to  the  same  rules,  regulations, 
and  restrictions  as  are  prescribed  in  cases  of  writs  of  error.12 
The  entry  of  the  appeal  in  the  clerk's  office  is  analogous  to  the 
issue  of  a  writ  of  error.13 

10  25  St.  at  L.  cli.  113,  §  6,  p.  656.  «  j\e\\y    „,  Lamar,    2    Craneh,   344; 

§401.  1  Barrel   v.  Transportation  Co.,  Brockett  v.  Brockett,  2  How.  238. 
8  Wall.  424;  Pierce  v.  Cox,  9  Wall.  786;  '  Order  in  Reference  to  Appeals  from 

Sage  v.  Railroad  Co.,  96  U.  S.  712.  Court  of  Claims,  Rule  •'!. 

-  Railroad  Co.  v.   Bradleys,   7   Wall.  8  Order  in  Reference  to  Appeals  from 

575  ;  Sage  v.  Railroad  Co.,  96  U.  S.  712;  Court  of  Claims,  Rule  8. 
Brandies  i>.  Cochrane,  105  U.  S.  262.  9  Order  in  reference  to  Appeals  from 

3  U.  S.  v.  Adams,  6  Wall.  101  ;  U  S.  Court  of  Claims  Rule  1. 

v.  Gomez,  3  Wall.  752 ;  Ex  parte  Rail-  10  Order  in  Reference  to  Appeals  from 
road  Co  ,  95  U.  S.  221.  Court  of  Claims,  Rule  1. 

4  Reily    v.    Lamar,    2    Craneh,  344 ;        "  §  368. 
Brockett  v.  Brockett,  2  How.  238.  12  U.  S.  R.  S.  §  1012. 

6  Vansant  v.  Gaslight  Co.,  99  U.  S.  213.         18  Villabolos  v.  U.  S.,  6  How.  81. 


606  WRITS   OF   ERROR   AND    APPEALS.  [CHAP.  XXX. 

§  402.  Supersedeas.  —  A  supersedeas  is  a  stay  of  proceedings 
upon  a  judgment  or  decree  to  which  a  writ  of  error  is  issued 
or  from  which  an  appeal  is  taken.1  To  secure  a  supersedeas  the 
writ  of  error  and  the  security  required  to  be  given  upon  the  issue 
of  a  citation  must  be  lodged  in  the  clerk's  office  for  the  use  of  the 
defendant  in  error,  within  sixty  days,  Sundays  exclusive,  after  the 
rendering  of  the  judgment.  Security  must  also  be  given  that 
the  plaintiff  in  error,  if  he  fail  to  make  his  plea  good,  will  an- 
swer all  damages  and  costs.2  This  latter  security,  if  filed  con- 
currently with  the  issue  of  the  citation  and  the  lodging  of  the 
writ  of  error  in  the  clerk's  office,  or  at  any  time  within  the  said 
sixty  days,  maybe  approved  by  the  justice  who  signs  the  citation, 
and  operates  as  a  stay  as  a  matter  of  right.3  Otherwise,  it  can 
only  operate  as  a  stay  by  the  permission  of  a  judge  or  justice  of 
the  Supreme  Court,  and  then  only  if  the  writ  of  error  was  sued 
out  and  served  within  the  sixt}'  days.4  The  security  upon  a  su- 
persedeas where  the  judgment  or  decree  is  for  the  recovery  of 
money  not  otherwise  secured,  must  be  for  the  whole  amount  of 
the  judgment  or  decree,  including  just  damages  for  delay  and 
costs  and  interest  on  the  appeal.5  In  suits  where  the  property  in 
controversy  necessarily  follows  the  event  of  the  suit,  as  in  real 
actions,  replevin,  and  suits  in  mortgages  ;  or  where  the  property 
is  in  the  custody  of  the  marshal  under  admiralty  process,  as  in 
case  of  a  capture  or  seizure  ;  or  where  the  proceeds  thereof,  or  a 
bond  for  the  value  thereof,  is  in  the  custody  or  control  of  the 
court,  —  indemnity  is  only  required  in  an  amount  sufficient  to  se- 
cure the  sum  recovered  for  the  use  and  detention  of  the  property, 
and  the  costs  of  the  suit  and  just  damages  for  delay  and  costs 
and  interest  on  the  appeal.6  Except  in  case  of  a  gross  abuse  of 
discretion,  the  action  of  the  judge  in  approving  the  amount  and 
sufficiency  of  the  sureties  to  a  supersedeas  bond  will  not  be 
reviewed." 

Where  an  appeal  from  a  final  decree  in  an  equity  suit,  grant- 
ing or  dissolving  an  injunction,  is  allowed  by  a  justice  or  judge 

§  402.  1  U.  S.  R.  S.  §  1007.  6  Supreme  Court  Rule  29.     See  The 

2  TJ.  S.  R.  S.  §  1007.  Holladay  Case,  Hickox  v.  Elliott,  28  Fed. 

3  U.  S.  R.  S.  §  1007  ;  Kitchen  v.  Ran-     R.  117. 

dolph,93  U.  S.  86.  7  Jerome  v.  MeCarter,   21  Wall.  17; 

*  U.  S.  R.  S.  §  1007 ;  Kitchen  v.  Ran-  Ex  parte  French,  100  U.  S.  1 ;  Martin  v. 

dolph,93U.  S.  86;  Sageu.  Central  R.  R.  Hazard  Powder  Co.,  93  U.  S.  302.     But 

Co.  of  Iowa,  93  U.  S.  412.  see  Stafford  v.  Union  Bank,  16  How.  135; 

6  Supreme  Court  Rule  29.  8.  c.  17  How.  275. 


§  403.]       RETURN  TO  WRIT  OF  ERROR  OR  APPEAL.  607 

who  took  part  in  the  decision  of  the  cause,  he  may,  in  his 
discretion,  at  the  time  of  such  allowance  make  an  order  sus- 
pending or  modifying  the  injunction  pending  the  appeal,  upon 
such  terms,  as  to  bond  and  otherwise,  as  he  may  consider  proper 
for  the  protection  of  the  rights  of  the  opposite  party.6 

A  writ  of  error  to  a  judgment  of  conviction  of  a  capital  crime 
in  a  court  of  the  United  States  operates  as  a  stay  of  proceedings 
without  the  filing  of  any  bond  or  other  security.9  A  special  rule 
regulates  stays  upon  appeal  in  habeas  corpus  proceedings.10 

§  403.  Return  to  Writ  of  Error  or  Appeal.  —  A  writ  of  error 
should  be  returned  to. the  Supreme  Court  on  or  before  the  re- 
turn day  thereof,  together  with  an  authenticated  transcript  of 
the  record,  an  assignment  of  errors,  a  prayer  for  reversal,  and 
the  original  citation  to  the  adverse  party,  all  of  which  should  be 
annexed  thereto.1  If,  however,  the  writ  is  served  before  the  re- 
turn day,  the  Supreme  Court  will  usually  allow  the  writ  or  the 
transcript  to  be  filed  at  any  time  during  the  term  in  which  the 
return  day  falls.2  The  destruction  of  the  writ  without  the  fault 
of  the  plaintiff  in  error  will  excuse  a  return  of  the  original  paper, 
provided  a  copy  of  the  writ  and  the  transcript  and  other  papers 
are  duly  filed.3  The  return-day  of  an  appeal  is  the  day  named  in 
the  citation.  The  copy  of  the  record  is  sufficiently  authenticated  if 
there  is  attached  to  the  same  a  certificate  that  the  writing  thereto 
attached  is  a  true  transcript  of  the  record,  signed  by  the  clerk  or 
his  deputy,  and  under  the  seal  of  the  court.4  The  seal  and  signa- 
ture are  both  requisite.5  The  record  must  be  complete,  and  con- 
tain in  itself  without  references  aliunde  all  the  papers,  exhibits, 
depositions,  and  other  proceedings  which  are  necessary  to  the 
hearing.6  A  copy  of  the  opinion  or  opinions  filed  in  the  case 
must  be  annexed  to  and  transmitted  with  the  record.7  When,  in 
the  opinion  of  the  presiding  judge  in  any  Circuit  Court  or  Dis- 
trict Court  exercising  the  jurisdiction  of  a  Circuit  Court,  it  is 
necessary  or  proper  that  original  papers,  of  any  kind  be  inspected 
in  the  Supreme  Court  on  appeal  or  writ  of  error,  such  presiding 

8  Rule  93.  3  Mussina  ,..  Cavazos,  6  Wall.  855. 

9  25  St.  at  L.  ch.  113,  §  6,  p.  656.  4  Garneau  v.  Dozier,  100  U.  S.  7.     Su- 
10  Supreme  Court  Rule  34;  §  368.             preme  Court  Rule  8. 

§  403.  i  U.  S.  R.  S.  §  997 ;  Wilson  v.         *  Supreme  Court  Rule  8. 
Daniel,  3  Dall.  401.  6  Supreme  Court  Rule  8.     See  Hoe  v 

2  Mussina   v.  Cavazos,   6   Wall.   355,  Kahler,  27  Fed.  R.  145. 
359  ;  Wood  v.  Lide,  4  Cranch,  180;  Pick-         7  Supreme  Court  Rule  8. 
ett  v.  Legerwood,  7  Pet.  144. 


608  WRITS   OF   ERROR   AND   APPEALS.  [CHAP.  XXX. 

judge  may  make  such  rule  or  order  for  the  safe-keeping,  transport, 
and  return  of  such  papers  as  he  deems  proper,  and  the  Supreme 
Court  will  receive  and  consider  such  original  papers  in  connec- 
tion with  the  transcript  and  proceedings.8  Whenever  any  record 
contains  any  document,  paper,  testimony,  or  other  proceeding  in 
a  foreign  language,  the  record  must  also  contain  a  translation 
thereof  made  under  the  authority  of  the  inferior  court  or  ad- 
mitted to  be  correct.9  Otherwise,  on  the  report  of  the  clerk,  the 
Supreme  Court  will  remand  the  case  to  the  inferior  court  in  order 
that  such  a  translation  may  be  there  supplied  and  inserted  in  the 
record.10     A  recent  rule  is  as  follows:  — 

"  1.  Models,  diagrams,  and  exhibits  of  material  forming  part  of 
the  evidence  taken  in  the  court  below,  in  any  case  pending  in 
this  court,  on  writ  of  error  or  appeal,  shall  be  placed  in  the  cus- 
tody of  the  marshal  of  this  court  at  least  one  month  before  the 
case  is  heard  or  submitted.  2.  All  models,  diagrams,  and  exhib- 
its of  material,  placed  in  the  custody  of  the  marshal  for  the 
inspection  of  the  court  on  the  hearing  of  a  case,  must  be  taken 
away  by  the  parties  within  one  month  after  the  case  is  decided. 
When  this  is  not  done,  it  shall  be  the  duty  of  the  marshal  to 
notify  the  counsel  in  the  case,  by  mail  or  otherwise,  of  the 
requirements  of  this  rule ;  and  if  the  articles  are  not  removed 
within  a  reasonable  time  after  the  notice  is  given,  he  shall 
destroy  them,  or  make  such  other  disposition  of  them  as  to  him 
may  seem  best."  n 

When  a  writ  of  error  or  appeal  is  brought  to  the  Supreme 
Court  from  any  judgment  or  decree  rendered  thirty  days  before 
the  commencement  of  the  term,  it  is  the  duty  of  the  plaintiff  in 
error  or  appellant  to  docket  the  cause  and  file  the  record  thereof 
with  the  clerk  within  the  first  six  days  of  the  term.12  If,  from 
a  judgment,  or  decree  rendered  less  than  thirty  days  before 
the  commencement  of  the  term,  it  is  his  duty  to  docket  the  cause 
and  file  the  record  with  the  clerk  within  the  first  thirty  days  of 
the  term.13  In  case  of  appeals  or  writs  of  error  from  California, 
Oregon,  Washington,  New  Mexico,  Utah,  Nevada,  Arizona,  Mon- 
tana, and  Idaho,  the  period  of  thirty  days  is  extended  to  sixty 
days.14 

8  Supreme  Court  Rule  8.  V1  Supreme  Court  Rule  9. 

9  Supreme  Court  Rule  11.  I3  Supreme  Court  Rule  9. 

10  Supreme  Court  Rule  11.  14  Supreme  Court  Rule  9. 

11  Supreme  Court  Rule  33. 


§  403.]       RETURN  TO  WRIT  OF  ERROR  OR  APPEAL.  609 

If  the  plaintiff  in  error  or  appellant  fails  to  docket  the  case 
and  file  the  record  in  time,  the  defendant  in  error  or  appel- 
lee may  have  the  case  docketed  and  dismissed  upon  produeing  a 
certificate  from  the  clerk  of  the  court  wherein  the  judgment  or 
decree  was  rendered,  stating  the  cause  and  certifying  that  such 
writ  of  error  or  appeal  was  duly  sued  out  and  allowed.15  After 
such  dismissal,  the  plaintiff  in  error  or  appellant  can  only  by  spe- 
cial leave  of  the  court  docket  the  case  and  file  the  record.16 

The  following  rule  regulated  appeals  under  the  last  clause  of 
section  5  of  March  3,  1875,  which  clause  was  repealed  by  the 
Act  of  March  3,  1887.  -  Whether  it  applies  to  writs  of  error 
and  appeals  under  the  Act  of  February  25,  1889,17  has  not  been 
decided.18  "  Rule  32.  —  1.  Writs  of  error  and  citations  under 
section  5  of  the  act  of  March  3,  1875,  '  to  determine  the  juris- 
diction of  the  Circuit  Courts  of  the  United  States  and  to 
regulate  the  removal  of  causes  from  the  State  courts  and  for 
other  purposes,'  for  the  review  of  orders  of  the  Circuit  Courts 
dismissing  suits  or  remanding  suits  to  a  State  court,  must  be 
made  returnable  within  thirty  days  after  date,  and  be  served 
before  the  return  day.  2.  In  all  cases  where  writ  of  error  or 
appeal  is  brought  to  this  court  under  the  provisions  of  that 
act,  it  shall  be  the  duty  of  the  plaintiff  in  error  or  the  appellant 
to  docket  the  case  and  file  the  record  in  this  court  within  thirty- 
six  days  after  the  date  of  the  writ  of  error,  or  the  taking  of 
the  appeal,  if  there  shall  be  a  term  of  the  court  pending  at  that 
time,  and  if  not,  then  during  the  first  six  days  of  the  next  term. 
If  default  be  made  in  this  particular,  proceedings  to  docket  and 
dismiss  may  be  had  as  in  other  cases.  3.  All  such  cases  will  be 
advanced  on  motion.  The  motion  may  be  made  ex  parte.  If 
granted,  the  party  on  whose  motion  the  case  shall  have  been 
advanced  may  have  the  case  submitted  on  printed  briefs,  on 
serving,  with  a  copy  of  his  brief,  on  the  adverse  party,  a  notice 
of  intention  to  submit,  such  as  is  required  by  rule  6  to  be  given 
upon  motions  to  dismiss  writs  of  error  and  appeals.  4.  As  soon 
as  such  a  case  is  docketed  and  advanced,  the  record  shall  be 
printed,  unless  the  parties  stipulate  to  the  contrary  and  file  their 
stipulations  with  the  Clerk.     5.  In  all  cases  where  a  period  of 

15  Supreme  Court  Rule  9.  M  See  Burlington,  C.  R.  &  N.  Ry.  u, 

v>  Supreme  Court  Rule  9.  Dunn,  121  U.  S.  182. 

»  25  St.  at  L.ch.  23G,  p.  093.    See  §  393. 

39 


610  WRITS   OF  ERKOR   AND   APPEALS.  [CHAP.  XXX. 

thirty  days  is  included  in  the  time  fixed  by  this  rule,  it  shall 
be  extended  to  sixty  days  in  writs  of  error  and  appeals  from 
California,  Oregon,  or  Nevada." 

The  plaintiff  in  error  or  appellant  must  on  docketing  a  cause 
and  filing  the  record  enter  into  an  undertaking  to  the  clerk, 
with  surety  to  his  satisfaction,  for  the  payment  of  his  fees, 
or  otherwise  satisfy  him  in  that  behalf.19  The  defendant  in 
error  or  appellee  may,  if  he  chooses,  docket  the  cause  and  file 
the  record.  Upon  the  filing  of  a  transcript  of  the  record  the 
appearance  of  the  counsel  for  the  party  docketing  the  cause 
should  be  entered.20 

A  motion  to  dismiss  a  writ  of  error  because  no  assignment  of 
errors  is  attached  to  the  return  will  be  denied.21  If  the  tran- 
script of  the  record  is  defective,  the  remedy  is  a  certiorari  for  a 
diminution  of  the  record.22  A  motion  for  such  a  writ  should  be 
made  at  the  first  term  of  the  entry  of  the  cause,  unless  upon 
special  cause  shown  an  application  at  a  later  term  is  permitted.23 
Pending  such  a  writ,  the  hearing  of  the  cause  is  usually  ad- 
journed.24 

A  writ  of  error  from  a  judgment  of  conviction  of  a  capital  crime 
in  a  court  of  the  United  States  does  not  require  any  security  for 
the  prosecution  of  the  same,  or  for  costs.25  Upon  the  allowance  of 
such  a  writ,  it  is  the  duty  of  the  clerk  of  the  court  to  which  the 
writ  is  directed  to  forthwith  transmit  to  the  clerk  of  the  Supreme 
Court  a  transcript  of  the  record,  which  the  clerk  of  the  Supreme 
Court  must  receive  and  docket.26  Such  a  writ  may  be  filed  and 
docketed  at  any  time  in  a  term  held  prior  to  the  term  named  in 
the  citation,  as  well  as  at  the  term  so  named.27  All  such  writs 
must  be  advanced  to  a  speedy  hearing  at  the  motion  of  either 
party.28 

§  404.  Review  of  Judgments  and  Decrees  of  District  Courts  by 
Circuit  Courts.  —  Final  judgments  and  decrees  of  a  District  Court 
in  civil  causes,  except  in  prize  cases,  where  the  matter  in  dispute 
exclusive  of  costs  exceeds  the  sum  or  value  of  fifty  dollars,  may 
be  re-examined  by  the  Circuit  Court  held  in  such  district  by 

19  Supreme  Court  Rule  10.  23  Supreme  Court  Rule  14. 

20  Supreme  Court  Rule  9.  u  Morgan  v.  Curtenius,  19  How.  8. 
2i  School  District  of  Ackley   v.  Hall,        *  25  St.  at  L.  ch.  113,  §  6,  p.  656. 

106  U.  S.  428  ;  Gumbel  v.  Pitkin,  113        26  25  St.  at  L.  ch.  113,  §  6,  p.  656. 

U.  S.  545.  27  25  St.  at  L.  ch.  113.  §  6,  p.  656. 

22  Supreme  Court  Rule  14.  »  25  St.  at  L.  ch.  113,  §  6,  p.  656. 


§  404.]        REVIEW  OF  JUDGMENTS  AND  DECREES.  611 

writ  of  error  or  appeal,  as  the  case  may  be.1  It  seems  that  an 
appeal  in  admiralty  or  equity  will  only  lie  to  the  next  term  of 
the  Circuit  Court  to  be  held  in  that  district.2  No  judgment, 
decree,  or  order  of  a  District  Court  can  be  reviewed  by  a  Cir- 
cuit Court  on  writ  of  error  or  appeal,  unless  the  writ  of  error 
is  sued  out  or  the  appeal  taken  within  one  year  after  the  entry 
of  such  judgment,  decree,  or  order  ;  but  where  a  party  entitled 
to  prosecute  a  writ  of  error  or  take  an  appeal  is  an  infant, 
or  non  compos  mentis,  or  imprisoned,  such  writ  of  error  may  be 
taken  within  one  year  after  the  entry  of  the  judgment,  decree,  or 
order,  exclusive  of  the  term  of  such  disability.3  In  case  of  an 
appeal,  copies  of  the  proofs  and  of  such  entries  and  papers,  on  file 
as  may  be  necessary  on  the  hearing  of  the  appeal,  may  be  certified 
up  to  the  appellate  court.4  The  citation  on  a  writ  of  error  issued 
by  a  Circuit  Court  to  a  District  Court  must  be  signed  by  the  Dis- 
trict Judge  or  the  Circuit  Judge,  or  any  justice  of  the  Supreme 
Court.5  A  Circuit  Court  may  affirm,  modify,  or  reverse  any 
judgment,  decree,  or  order  of  a  District  Court  brought  before  it 
for  review,  or  may  direct  such  judgment,  decree,  or  order  to  be 
rendered,  or  such  further  proceedings  to  be  had  as  the  justice  of 
the  case  may  require.6 

The  Circuit  Court  for  each  judicial  district  can  re-examine  by 
writ  of  error  all  criminal  cases  tried  before  the  District  Court, 
where  the  sentence  is  imprisonment,  or  fine  and  imprisonment,  or 
a  fine  in  excess  of  three  hundred  dollars.7  In  such  a  case  the  de- 
fendant may  except  to  the  opinion  of  the  court,  and  is  entitled  to 
have  a  bill  of  exceptions  settled,  signed,  and  allowed  by  the  trial 
judge,  and  made  a  part  of  the  record.8  Such  writ  of  error  is  al- 
lowed upon  petition  within  one  year  next  after  the  end  of  the  term 
at  which  the  sentence  was  pronounced,  when  the  Circuit  Judge  or 
Justice  deems  the  questions  of  sufficient  importance  and  difficulty 
to  warrant  the  issue  of  the  writ.9  He  may  also  order  that  the  writ 
operate  as  a  stay  of  the  sentence.10     When  the  writ  is  allowed,  a 

§  404.  i  U.  S.  R.  S.  §§  631,  632.  «  U.  S.  R.  S.  §  636. 

2  U.  S.  R.   S.   §  631;    U.    S.  v.  The  7  Act  of  March  3,  1879,  ch.  176,  §2; 

Glamorgan,  2   Curt.   236  ;    The   Hollen,  1  Supp.  U.  S.  R.  S.  p.  452 ;  20  St.  at  L. 

1  Mason,  431;    Drake  v.  The  Oriental,  354. 

9  Chic.  L.  N.  321  ;  Gloucester  Ins.  Co.  v.  8  Act  of  March  3,  1879,  ch.  176,  §  2  ; 

Younger,  2  Curt.  322.  20  St.  at  L.  354. 

8  U.  S.  R.  S.  §  635.  o  Act  of  March  3,  1879,  ch.  176,  §  2 ; 

*  U.  S.  R.  S.  632.  1  Supp.  U.  S.  R.  S.  p.  452 ;  20  St.  at  L.  354. 

6  U.  S.  R.  S.  §  998.  io  Act  of  March  3,  1879,  ch.  176,  §  2  ; 


G12  WRITS   OF   EREOB   AND   APPEALS.  [CHAP.  XXX. 

bond  must  be  given  that  the  plaintiff  in  error  will  abide  the 
judgment  of  the  Circuit  Court  thereon.11  If  the  writ  is  allowed 
to  operate  as  a  stay,  bail  may  also  be  taken  for  the  appearance  of 
the  plaintiff  in  error  at  the  next  regular  term  of  the  Circuit  Court 
for  the  district,  and  that  he  will  not  depart  without  leave  of  the 
court.12  Such  writ  of  error  is  returnable  to  the  next  regular  term 
of  the  Circuit  Court  for  the  district,  and  must  be  served  on  the 
district  attorney  of  the  United  States  for  such  district.13  In  case 
of  an  affirmance  of  the  judgment  of  the  District  Court,  the  Cir- 
cuit Court  must  proceed  to  pronounce  final  sentence  and  to  award 
execution  thereon.14  If  the  judgment  is  reversed,  the  Circuit 
Court  may  proceed  with  the  trial  de  novo,  or  remand  the  case 
to  the  District  Court  for  further  proceedings.15 

Otherwise,  proceedings  upon  writs  of  error  from  Circuit  to 
District  Courts  are  usually  substantially  similar  to  those  upon 
writs  of  error  from  the  Supreme  Court  to  Circuit  Courts.16 

§  405.  Writs  of  Error  from  Supreme  Court  to  State  Courts.  — 
The  Revised  Statutes  provide  that  "a  final  judgment  or  decree 
in  any  suit  in  the  highest  court  of  a  State,  in  which  a  decision 
in  the  suit  could  be  had,  where  is  drawn  in  question  the  validity 
of  a  statute  of,  or  an  authority  exercised  under,  the  United 
States,  and  the  decision  is  against  their  validity,  or  where  is 
drawn  in  question  the  validity  of  a  statute  of,  or  authority 
exercised  under,  any  State,  on  the  ground  of  their  being  repug- 
nant to  the  Constitution,  treaties  or  laws  of  the  United  States, 
and  the  decision  is  in  favor  of  their  validity  ;  or  where  any 
title,  right,  privilege,  or  immunity  is  claimed  under  the  Con- 
stitution, or  any  treaty,  or  statute  of,  or  commission  held  or 
authority  exercised  under,  the  United  States,  and  the  decision 
is  against  the  title,  right,  privilege,  or  immunity  specially  set  up 
or  claimed  by  either  party,  under  such  Constitution,  treaty,  stat- 
ute, commission,  or  authority,  may  be  re-examined  and  reversed 
or  affirmed  in  the  Supreme  Court  upon  a  writ  of  error.     The 

1  Supp.  U.  S.  R.  S.  p.  452;  20  St.  at  L.  1  Supp.  U.  S.  R.  S.  p.  452;  20  St.  at  L 

354.  354. 

"  Act  of  March  3,  1879,  ch.  176,  §  2;  M  Act  of  March  3,  1879,  ch.   176,  §  3 

1  Supp.  U.  S.  R.  S.  p.  452 ;  20  St.  at  L.  1   Supp.  U.  S.  R.  S.  p.  452;  20  St.  at  L 

354.  354. 

i2  Act.  of  March  3,  1879,  ch.  176,  §  3;  t5  Act  of  March  3,  1879.  ch.  176,  §  3 

1  Supp.  U.  S.  R.  S.  p.  452 ;  20  St.  at  L.  1  Supp.  U.  S.  R.  S.  p.  452 ;  20  St.  at  L. 

354.  354. 

13  Act  of  March  3,  1879,  ch.  176,  §  3 ;  i6  See  U.  S.  R.  S.,  §§  997,  998,  1000. 


§  405.]      WRITS    OF   ERROR   FROM   SUPREME   TO    STATE    COURTS.        G13 

writ  shall  have  the  same  effect  as  if  the  judgment  or  decree 
complained  of  had  been  rendered  or  passed  in  a  court  of  the 
United  States;  and  the  proceeding  upon  the  reversal  shall  be 
the  same,  except  that  the  Supreme  Court  ma}',  at  their  discretion, 
proceed  to  a  final  decision  of  the  case,  and  award  execution,  or  re- 
mand the  same  to  the  court  from  which  it  was  so  removed.  The 
Supreme  Court  may  re-affirm,  reverse,  modify,  or  affirm  the  judg- 
ment or  decree  of  such  State  court,  and  may,  at  their  discretion, 
award  execution,  or  remand  the  same  to  the  court  from  which 
it  was  removed  by  the  writ."  *  "  When  a  writ  of  error  is  issued 
for  the  revision  of  the  judgment  of  a  State  court,  in  any  criminal 
proceeding  where  is  drawn  in  question  the  validity  of  a  statute  of, 
or  an  authority  exercised  under,  the  United  States,  or  where  any 
title,  right,  privilege,  or  immunity  is  claimed  under  the  Constitu- 
tion, or  any  statute  of,  or  commission  held  or  authority  exercised 
under,  the  United  States,  the  defendant,  if  charged  with  an  of- 
fense that  is  bailable  by  the  laws  of  such  State,  shall  not  be  re- 
leased from  custody  until  a  final  judgment  upon  such  writ,  or  until 
a  bond,  with  sufficient  sureties,  in  a  reasonable  sum,  as  ordered 
and  approved  by  the  State  court  is  given ;  and  if  the  offense  is 
not  so  bailable,  until  a  final  judgment  upon  the  writ  of  error."  2 
"  Cases  on  writ  of  error  to  revise  the  judgment  of  a  State  court 
in  any  criminal  case,  shall  have  precedence,  on  the  docket  of 
the  Supreme  Court,  of  all  cases  to  which  the  Government  of  the 
United  States  is  not  a  party,  excepting  only  such  cases  as  the 
court,  in  its  discretion,  may  decide  to  be  of  public  importance."3 
The  jurisdiction  of  the  Supreme  Court  to  review  judgments  and 
decrees  of  State  courts,  although  at  first  bitterly  contested,  has 
been  held  to  be  constitutional.4 

The  writ  of  error  is  not  allowed  as  a  matter  of  right.5  The 
practice  is  to  submit  the  record  of  the  State  court  to  a  justice 
of  the  Supreme  Court,  whose  duty  it  then  is  to  ascertain  upon 
examination  whether  the  case  upon  the  face  of  the  record  will 
justify  the  allowance  of  the  writ.6  He  may  refer  the  application 
to  the  whole  court  for  decision  as  to  the  propriety  of  the  issue 
of  the  writ.7     The  writ  will  be  denied  if  there  is  no  Federal 

§  405.  '  U.  S.  R.  S.  §  709.  5  Twitchell  v.  Commonwealth,  7  Wall. 

2  U.  S.  R.  S.  §  1017.  321;  Spies  v.  Illinois,  123  U.  S.  131,  143, 

3  U.  S.  R.  S.  §  710.  6  Twitchell  v.  Commonwealth,  7  Wall. 
*  Martin    v.   Hunter,   1    Wheat.  304;     321  ;  Spies  v.  Illinois,  123  U.  S.  131,  143. 

Cohens  v.  Virginia,  6  Wheat.  204.  7  Twitchell  v.  Commonwealth,  7  Wal 


614  WRITS   OF   ERROR   AND   APPEALS.  [CHAP.  XXX. 

question  involved,  or  if  the  decision  complained  of  was,  as 
regards  the  Federal  question,  so  plainly  right  as  not  to  require 
argument.8  The  application  for  a  writ  of  error,  if  made  to  a 
single  justice,  is  usually  ex  parte.  When  made  to  the  full  court, 
usually  both  sides  are  heard.9 

A  judgment  which  orders  a  new  trial 10  or  any  further  pro- 
ceedings11 cannot  be  thus  reviewed.  A  judgment  uncondition- 
ally dismissing  a  complaint,  when  nothing  more  is  requisite  to 
complete  the  dismissal,  may  thus  be  reviewed.12  What  con- 
stitutes a  final  decree  has  been  considered  in  the  chapter  on 
decrees.13  The  term  "  suit,"  as  used  in  this  statute,  applies  to 
any  proceeding  in  a  court  of  justice  in  which  a  person  pursues  the 
remedy  which  the  law  affords  him.14  It  includes  an  application 
for  a  writ  of  mandamus,15  prohibition,16  or  habeas  corpus.17 

A  writ  of  error  may  be  issued  by  the  Supreme  Court  of  the 
United  States  to  a  judgment  of  an  inferior  State  court  which, 
by  the  laws  of  the  State,  cannot  be  reviewed  in  the  highest  State 
court.18  When,  however,  the  plaintiff  in  error  has  a  right  to  a 
review  of  the  judgment  in  another  court  of  the  State,  no  writ  of 
error  can  be  obtained  till  after  such  review  has  been  had.19  The 
writ  should  be  directed  to  the  court  in  which  the  final  judgment 
was  rendered,  by  whose  process  it  is  to  be  executed,  and  where 
the  record  remains,  although  a  higher  court  has  considered  the 
case  upon  appeal  or  writ  of  error,  and  sent  down  a  remittitur  or 
rescript  accordingly.20  In  the  latter  case,  the  writ  may  be  ad- 
dressed to  the  highest  court,  and  seek  through  its  instrumentality 
to  obtain  the  record  from  the  inferior  court  having  it  in  keeping;21 

lace,  321 ;  Spies  v.  Illinois,  123  U  S.  131,  *5  Hartman  v.    Greenhow,   102  U.   S. 

143.  672. 

8  Spies  v.  Illinois,  123  U.  S.   131,  166  ;  16  Weston  v.  Charleston,  2  Pet.  449. 
Brooks  v.  Missouri,  124  U.  S.  394.  1:  Kurtz  v.  Moffitt,  115  U.  S.  487. 

9  Spies  v.  Illinois,  123  U.  S.  131.  1S  Downham  v.    Alexandria,    9   Wall. 

10  Houston    v.   Moore,   3  Wheat.  433  ;     659  ;  Gregory  v.  McVeigh,  23  Wall.  294  ; 
Parcels  v.  Johnson,  20  Wall.  653;  Ran-     Miller  v.  Joseph,  17  Wall.  655. 

kin  v.  State,  11  Wall.  380.  19  Downham    v    Alexandria,   9   Wall. 

11  McComb  v.  Commissioners  of  Knox  659 ;    Miller   v.   Joseph,    17    Wall.   655 ; 
Countv,  91  U.  S.  1 ;  Bostwick  ».  Brinker-  Gregory  v.  McVeigh,  2o  Wall   294. 
hoff,   i06  U.  S.  3;  Gibbons  v.  Ogden,  6  *>  Gelston    v.    Hoyt,   3    Wheat.    246; 
Wheat.  448.  Kanouse  v.  Martin,  15  How.  198  ;  M'Guire 

12  Commissioners  of  Tippecanoe  Coun-  v.  Commonwealth,  3  Wall.  382;  Polleys 
ty  v.  Lucas,  93  U.  S.  108.  v.  Black  River  Imp.  Co.,  113  D.  S.  81. 

13  See  §  318.  21  Atherton   v.   Fowler,  91  U.  S.  143, 
"  Weston   v.   Charleston.  2  Pet.  449;     147. 

Aldrich  v.  Aetna  Co.,  8  Wall.  491 . 


§  405.]   WRITS  OF  ERROR  FROM  SUPREME  TO  STATE  COURTS.   615 

but  it  is  the  safer  practice  to  address  the  writ  to  the  court  which 
has  the  record.22 

The  writ  of  error  to  a  State  court  must,  like  the  writ  to  a 
Circuit  Court,  be  accompanied  by  a  citation  and  a  bond.23  The 
citation  must  be  signed  and  the  bond  approved  by  the  chief  jus- 
tice, judge,  or  chancellor  of  the  court  to  which  the  writ  is  ad- 
dressed, or  by  a  justice  of  the  Supreme  Court  of  the  United 
States.24  The  defendant  in  error  must  have  at  least  thirty  days' 
notice  before  the  hearing  of  the  cause.25 

When  it  is  desired  to  secure  the  right  to  review  the  decision 
of  a  State  court  in  the  Supreme  Court  of  the  United  States,  it 
is  the  safer  practice  to  make  it  appear  distinctly  on  the  record, 
by  a  statement  either  in  the  pleadings  or  as  the  ground  of  an 
objection  to  the  admission  of  evidence,  or  in  support  of  an 
offer  of  evidence  or  a  request  to  charge,  that  a  Federal  ques- 
tion is  involved.26  This  is  not,  however,  indispensable,  if  the 
Supreme  Court  can  see  by  an  examination  of  the  record  that 
the  Federal  question  was  raised  and  decided  adversely  to  the 
plaintiff  in  error.27  The  opinion  of  the  State  court,  if  properly 
authenticated,  may  be  examined  to  see  what  questions  were 
decided.28  A  certificate  of  the  presiding  justice  of  that  court 
may  also  be  examined  for  that  purpose.29  But  neither  of  these 
is  conclusive.30  When  it  appears  that  the  decision  below  was 
adverse  to  the  plaintiff  in  error  upon  two  independent  grounds, 
one  of  which  is  not  a  Federal  question,  the  Supreme  Court 
will  affirm  the  judgment.31  When  the  Supreme  Court  is  of 
the  opinion  that  the  Federal  question  was  erroneously  decided 
it  will  still  affirm  the  judgment,  if  it  appears  that  on  an- 
other ground,  even  if  such  ground  were  not  considered  by  the 

22  Atherton  v.   Fowler,  91  U.  S.  143,    477  ;  Adams  County  v.  Burlington  &  Mo. 
147.  R.  R.  Co.,  112  U.  S.  123, 129 ;  Philadelphia 

23  U.  S.  R.  S.  §§  999,  1000.  Fire  Association  v.  New  York,  119  U.  S. 

24  U.  S.  R.  S.  §§  999,  1000.  110,116. 

85  U.  S.  R.  S.  §  999.  29  Murdock  v.  Memphis,  20  Wall.  590, 

26  Curtis  on  Jurisdiction  of  U.  S.  Courts,    63.3. 

37-39.  30  Adams   County  v.  B    &  Mo.  R.  R. 

27  Furman    v.    Nichol,    8    Wall.    44;     Co.,  112  U.  S.   123,129;  Cross  v.  U.  S. 
Crowell  v.  Randell,  10  Pet.   368;   Arm-     Mortgage  Co.,  108  U.  S.  177 

strong   v.   Treasurer  of  Athens  County,  31  Murdock  v.  Memphis,  20  Wall.  590 ; 

16  Pet.  281 ;  Beer  Co.  v.  Massachusetts,  Adams  County   v.  B.   &   M.   R.   R  Co , 

»7  U.  S.  25.  112  U.  S.  123;  De   Saussure  v.  Gaillard, 

*8  Murdock  v.  Memphis,  20  Wall.  590;  127  U.  S.  216. 
Gross  v.   U.  S.  Mortgage   Co.,  108  U.  S. 


G16  WRITS   OF   ERROR   AND   APPEALS.  [CHAP.  XXX. 

State  court,  the  decision  was  correct.32  The  amount  of  the 
matter  in  dispute  in  the  State  court  is  immaterial  to  the  right  of 
review  by  the  Supreme  Court  of  the  United  States.33  Otherwise, 
writs  of  error  to  State  courts  and  the  practice  and  proceedings 
under  them  are  substantially  similar  to  writs  of  error  to  Circuit 
Courts  of  the  United  States,  and  the  practice  and  proceedings 
thereunder.34 

§  406.  Motions  to  Dismiss  Appeals  or  "Writs  of  Error.  —  A  mo- 
tion to  dismiss  a  writ  of  error  or  appeal  upon  the  ground  of  want 
of  jurisdiction  or  otherwise  maybe  made  at  anytime,  even  before 
the  term  to  which  the  return  should  regularly  be  made.1  With 
the  motion  to  dismiss  may  be  united  a  motion  to  affirm,  on  the 
ground  that  although  the  record  may  show  that  the  Supreme 
Court  has  jurisdiction  it  is  manifest  that  the  writ  or  appeal  was 
taken  for  delay  only,  or  that  the  question  on  which  the  jurisdic- 
tion depends  is  so  frivolous  as  not  to  need  further  argument.2 
Such  a  motion  will  not  be  granted  unless  there  is  a  colorable 
ground  for  the  motion  to  dismiss,3  except  in  a  case  where  the 
appeal  is  clearly  frivolous.4  It  seems  that  such  a  motion  will 
not  be  granted  if  united  with  a  motion  to  dismiss  for  a  defect  in 
the  bond.5  The  motion  to  affirm  may  be  united  with  a  motion  to 
dismiss  for  a  defect  in  the  form  of  a  writ  of  error.6  The  motion, 
like  all  other  motions  in  the  Supreme  Court,  must  be  reduced  to 
writing  and  contain  a  brief  statement  of  the  facts  and  objects  of 
the  motion.7  The  motion  day  is  Monday  throughout  the  term.8 
No  motion  to  dismiss,  except  on  special  assignment  by  the  court, 
shall  be  heard,  unless  previous  notice  has  been  given  to  the 
adverse  party,  or  his  counsel  or  attorney.9  The  party  moving 
to  dismiss  must  serve  notice  of  the  motion,  with  a  copy  of  his 
brief  or  argument,  on  the  counsel  for  his  opponent  in  the  Supreme 

82  Murdock   v.    City   of    Memphis,  20  106  U.  S.  428 ;  Hinckley  v.  Morton,  103 

Wall.  500,  636.  U.  S.   764;  Davies  v.  Corbin,  113  U.  S. 

®»  Buel  v.  Van  Ness,  8  Wheat.  312.  687  ;  Walsington  v.  Nevin,  128  U.  S.  578; 

84  U   S.  R.  S.  §  1003.  New    Orleans    v.    Construction    Co.,    129 

§  406.  i  Ex  parte  Russell,  13  Wall.  664  ;  U.  S.  223 ;  The  Alaska,  130  U.  S.  201. 

Clark  v.  Hancock,  94  U.  S.  493.  *  Chanute  City  v.  Trader,  132  U.  S. 

2  Supreme  Court  Rule  6;   Whitney  v.  210;    The  S.  C.  Tryon,  105   U.  S.  267; 

Cook.  09  U.  S.  607  ;  Hinckley  v.  Morton,  Swope  v.  Leffingwell,  105  U.  S.  3. 

103  U.   S.  764  ;  Micas  v.  Williams,  104  5  Gay  v.  Parpart,  101  U.  S.  391. 

U.    S.    556;    Swope    v.    Leffingwell,  105  6  Evans  v.  Brown,  109  U.  S.  180. 

U.  S.  3 ;   Chanute   City  v.  Trader,  132  7  Supreme  Court  Rule  6. 

U.  S.  210.  8  Supreme  Court  Rule  6. 

8  School  District  of  Ackley   v.  Hall,  9  Supreme  Court  Rule  6. 


§  407.]  PRINTING   THE   RECORD.  617 

Court  at  least  three  weeks  before  the  time  fixed  for  submitting 
the  motion,  in  all  cases  except  where  such  counsel  resides  west 
of  the  Rocky  Mountains,  when  the  notice  must  be  at  least  thirty- 
days.10  Affidavits  of  the  deposit  in  the  mail  of  the  notice  and 
brief  properly  addressed  to  the  counsel  to  be  served,  duly  post- 
paid, in  time  to  reach  him  by  due  course  of  mail,  three  weeks  or 
thirty  days,  as  the  case  may  be,  before  the  time  fixed  by  the 
notice,  is  prima  facie  evidence  of  service  on  counsel  who  reside 
without  the  District  of  Columbia.11  Further  time  may,  how- 
ever, be  given  either  party  by  the  court.12  The  motion,  if  not  a 
motion  to  docket  and  dismiss  for  failure  to  file  the  record,  must, 
in  the  first  instance,  be  submitted  on  printed  briefs  and  argu- 
ments.13 If  the  court  requires  further  argument  on  the  subject, 
it  Will  be  ordered  in  connection  with  the  argument  of  the  case 
on  the  merits.14  The  motion  to  affirm,  if  made  before  the  record 
is  printed,  will  rarely  be  granted  unless  the  motion  papers  are 
very  full  and  clearly  show  the  want  of  jurisdiction.15  When  the 
plaintiff  and  defendant  in  error,  or  the  appellant  and  appellee,  in 
vacation  file  a  stipulation  that  the  case  be  dismissed,  signed  by 
their  attorneys,  and  specifying  the  terms  as  to  costs,  and  pay  the 
clerk  any  fees  that  may  be  due  him,  it  is  the  clerk's  duty  to  enter 
the  case  as  dismissed,  and  to  give  either  party  who  asks  it  a  copy 
of  the  agreement  filed.16  No  mandate  or  other  process  can  issue 
without  an  order  of  the  court.17 

§  407.  Printing  the  Record.  —  The  record  must  be  printed  for 
the  use  of  the  court  and  counsel.  The  following  rule  regulates 
printing  the  record  :  — 

"  1.  In  all  cases  the  plaintiff  in  error  or  appellant,  on  docketing 
a  case  and  filing  the  record,  shall  enter  into  an  undertaking  to 
the  clerk,  with  surety  to  his  satisfaction,  for  the  payment  of  his 
fees,  or  otherwise  satisfy  him  in  that  behalf. 

"  2.  The  clerk  shall  cause  an  estimate  to  be  made  of  the  cost 
of  printing  the  record,  and  of  his  fee  for  preparing  it  for  the 
printer  and  supervising  the  printing,  and  shall  notify  to  the  party 
docketing  the  case  the  amount  of  the  estimate.  If  he  shall  not 
pay  it  within  a  reasonable  time,  the  clerk  shall  notify  the  adverse 

10  Supreme  Court  Rule  6.  15  Crane   Iron   Co.   v.   Hoagland,   108 

11  Supreme  Court  Rule  6.  U.  S.  5. 

12  Supreme  Court  Rule  6.  16  Supreme  Court  Rule  28. 
18  Supreme  Court  Rule  6.  17  Supreme  Court  Rule  28. 
14  Supreme  Court  Rule  6. 


618  WRITS    OF   ERROR    AND    APPEALS.  [CHAP.  XXX. 

party,  and  he  may  pay  it.  If  neither  party  shall  pay  it,  and  for 
want  of  such  payment  the  record  shall  not  have  been  printed 
when  a  case  is  reached  in  the  regular  call  of  the  docket,  after 
March  1,  1884,  the  case  shall  be  dismissed. 

"  3.  Upon  payment  b}*  either  party  of  the  amount  estimated 
by  the  clerk,  twenty-five  copies  of  the  record  shall  be  printed, 
under  his  supervision,  for  the  use  of  the  court  and  of  counsel. 

"4.  In  cases  of  appellate  jurisdiction  the  original  transcript  on 
file  shall  be  taken  by  the  clerk  to  the  printer.  But  the  clerk  shall 
cause  copies  to  be  made  for  the  printer  of  such  original  papers, 
sent  up  under  Rule  8,  section  4,  as  are  necessary  to  be  printed  ; 
and  of  the  whole  record  in  cases  of  original  jurisdiction. 

"  5.  The  clerk  shall  supervise  the  printing,  and  see  that 
the  priuted  copy  is  properly  indexed.  He  shall  distribute  the 
printed  copies  to  the  justices  and  the  reporter,  from  time  to 
time,  as  required,  and  a  copy  to  the  counsel  for  the  respective 
parties. 

"  6.  If  the  actual  cost  of  printing  the  record,  together  with 
the  fee  of  the  clerk,  shall  be  less  than  the  amount  estimated  and 
paid,  the  amount  of  the  difference  shall  be  refunded  by  the  clerk 
to  the  party  paying  it.  If  the  actual  cost  and  clerk's  fee  shall 
exceed  the  estimate,  the  amount  of  the  excess  shall  be  paid  to 
the  clerk  before  the  delivery  of  a  printed  copy  to  either  party  or 
his  counsel. 

"  7.  In  case  of  reversal,  affirmance,  or  dismissal,  with  costs, 
the  amount  of  the  cost  of  printing  the  record  and  of  the  clerk's 
fee  shall  be  taxed  against  the  party  against  whom  costs  are 
given,  and  shall  be  inserted  in  the  body  of  the  mandate  or  other 
proper  process. 

"  9.  The  plaintiff  in  error  or  appellant  may,  within  ninety  days 
after  filing  the  record  in  this  court,  file  with  the  clerk  a  statement 
of  the  errors  on  which  he  intends  to  rely,  and  of  the  parts  of  the 
record  which  he  thinks  necessary  for  the  consideration  thereof, 
and  forthwith  serve  on  the  adverse  party  a  copy  of  such  state- 
ment. The  adverse  party,  within  ninety  days  thereafter,  may 
designate  in  writing,  filed  with  the  clerk,  additional  parts  of  the 
record  which  he  thinks  material ;  and,  if  he  shall  not  do  so,  he 
shall  be  held  to  have  consented  to  a  hearing  on  the  parts  desig- 
nated by  the  plaintiff  in  error  or  appellant.     If  parts  of  the 


§  408.]  ARGUMENT   OF   APPEALS    AND   WPJTS    OF   ERROR.  619 

record  shall  be  so  designated  by  one  or  both  of  the  parties,  the 
clerk  shall  print  those  parts  only ;  and  the  court  will  consider 
nothing  but  those  parts  of  the  record,  and  the  errors  so  stated. 
If  at  the  hearing  it  shall  appear  that  any  material  part  of  the 
record  has  not  been  printed  the  writ  of  error  or  appeal  may  be 
dismissed,  or  such  other  order  made  as  the  circumstances  may 
appear  to  the  court  to  require.  If  the  defendant  in  error  or 
appellee  shall  have  caused  unnecessary  parts  of  the  record  to 
be  printed,  such  order  as  to  costs  may  be  made  as  the  court  shall 
think  proper."  1 

All  briefs  and  records  for  the  use  of  the  court  must  be  printed 
in  such  form  and  size  that  they  can  be  conveniently  cut  and 
bound  so  as  to  make  an  ordinary  octavo  volume.2 

§  408.  Argument  of  Appeals  and  Writs  of  Error  in  the  Supreme 
Court.  —  All  cases  may,  by  consent  of  counsel,  be  submitted  on 
printed  arguments,  within  the  first  ninety  days  of  the  term, 
without  regard  to  the  number  of  the  case  on  the  docket,  and  ap- 
peals from  the  Court  of  Claims  may  be  thus  submitted  within  thirty 
days  after  they  are  docketed,  but  not  in  the  midst  of  any  term 
after  the  first  of  April.1  In  each  case  of  such  submission  twenty- 
five  copies  of  the  arguments,  signed  by  attorneys  or  counsellors 
of  the  Supreme  Court,  must  first  be  filed.2  No  case  can  be  sub- 
mitted or  taken  up  for  argument  within  three  days  before  the 
day  fixed  for  an  adjournment.3  Ten  cases  only,  including  the 
one  under  argument,  will  be  called  each  day.4 

Writs  of  error  to  revise  the  judgments  of  State  courts  ii* 
criminal  cases  take  precedence  in  the  calendar,  unless  the  Su- 
preme Court  otherwise  directs.5  Writs  of  error  to  judgments  of 
conviction  of  capital  crimes  in  the  courts  of  the  United  States 
must  be  advanced  to  a  speedy  hearing  on  motion  of  either  party.6 
Other  criminal  eases  may  be  advanced  by  leave  of  the  court  on 
the  motion  of  either  party.7  Cases  once  adjudicated  by  the 
Supreme  Court  upon  the  merits,  and  again  brought  up  by  writ 
of  error  or  appeal,  may  be  advanced  by  leave  of  the  court  on 
motion  of  either  party.8    Revenue  cases  and  other  cases  in  which 

§  407.   >  Supreme  Court  Rule  10.  a  Supreme  Court  Rule  27. 

2  Supreme  Court  Rule  31.  <  Supreme  Court  Rule  26. 

§  40*.    '  Supreme  Court  Rule  20,  as  5  U.  S.  R.  S.  §  710. 

amended  123  U.  S.  759.  o  25  St.  at  L.  ch.  113,  §  6,  p.  656. 

2  Supreme  Court  Rule  20,  as  amended  "  Supreme  Court  Rule  26. 

123  U.  S.  759.  s  Supreme  Court  Rule  26. 


620  WRITS    OF   ERROR   AND    APPEALS.  [CHAP.  XXX. 

the  United  States  are  concerned,  which  also  involve  or  affect  some 
matter  of  general  public  interest,  may,  by  leave  of  the  court, 
be  advanced  on  motion  of  the  Attorney-General.9  The  court 
may  advance  any  other  cause  under  special  and  peculiar  circum- 
stances.10 Two  or  more  cases,  involving  the  same  question,  may 
be  heard  together  by  leave  of  the  court.11  All  motions  to  ad- 
vance causes  must  be  printed,  and  contain  a  brief  statement  of 
the  matter  involved,  with  the  reasons  for  the  application.12 

No  stipulation  to  pass  a  cause  without  placing  it  at  the  foot 
of  the  docket  will  be  recognized  as  binding  upon  the  court.13  A 
cause  can  only  be  so  passed  upon  application  made  and  leave 
granted  in  open  court.14  If  either  party  is  ready  when  a  case  is 
called  for  argument,  it  is  heard.15  Otherwise,  the  case  goes  to 
the  foot  of  the  docket,  unless  some  good  and  satisfactory  reason 
to  the  contrary  is  shown  to  the  court.16  A  case  thus  sent  to  the 
foot  of  the  docket,  if  not  again  reached  during  the  term,  is  con- 
tinued to  the  next  term.17  When  a  case  is  called  for  argument 
at  two  successive  terms,  and  upon  the  call  at  the  second  term 
neither  party  is  prepared  to  argue  it,  the  case  will  be  dismissed 
at  the  costs  of  the  plaintiff  unless  sufficient  cause  for  a  postpone- 
ment is  shown.18  After  a  case  has  been  passed  without  going  to 
the  foot  of  the  docket,  on  the  written  request  of  both  parties  the 
clerk  will  place  it  on  the  calendar  ten  cases  after  the  case  under 
argument  or  next  to  be  called  at  the  end  of  the  day  the  request 
is  filed.19  If  the  parties  do  not  join  in  such  a  request,  either  may 
move  to  take  up  the  cause,  and  it  will  then  be  assigned  to  such 
place  on  the  docket  as  the  court  directs.20  The  Supreme  Court 
may  postpone  the  argument  of  an  important  constitutional  ques- 
tion when  the  bench  is  not  full.21 

The  counsel  for  the  plaintiff  in  error  or  appellant  must  file 
with  the  clerk,  at  least  six  days  before  the  case  is  called  for  argu- 
ment, twenty  copies  of  a  printed  brief,  one  of  which  must,  on 
application,  be  furnished  to  each  of  the  counsel  on  the  opposite 
side.    This  brief  must  contain,  in  the  order  here  stated:  —  (1)  A 

9  Supreme  Court  Rule  26.  17  Supreme  Court  Kule  26. 

10  Supreme  Court  Rule  26.  18  Supreme  Court  Rule  19. 

11  Supreme  Court  Rule  26.  19  Supreme  Court  Rule  26. 

12  Supreme  Court  Rule  26.  20  Supreme  Court  Rule  26. 

"  Supreme  Court  Rule  26.  2i  Mayor  of  N.  Y.  v.  Miln,  9  Pet.  85 ; 

14  Supreme  Court  Rule  26.  Briscoe  v.  Commonwealth  Bank  of  Ken- 

15  Supreme  Court  Rule  26.  tucky,  9  Pet.  85. 

16  Supreme  Court  Rule  26. 


I 


§  408.]  ARGUMENT   OF   APPEALS   AND    WPJTS    OF   ERROR.  G21 

concise  abstract  or  statement  of  the  case,  presenting  succinctly 
the  questions  involved  and  the  manner  in  which  they  are  raised. 
(2)  A  specification  of  the  errors  relied  upon,  which,  in  cases 
brought  up  by  writ  of  error,  must  set  out  separately  and  particu- 
larly each  error  asserted  and  intended  to  be  urged  ;  and  in  cases 
brought  up  by  appeal  the  specification  must  state,  as  particularly 
as  may  be,  in  what  the  decree  is  alleged  to  be  erroneous.     When 
the  error  alleged  is  to  the  admission  or  to  the  rejection  of  evi- 
dence, the  specification  must  quote  the  full  substance  of  the  evi- 
dence admitted  or  rejected.     When   the  error  alleged  is  to  the 
charge  of  the  court,  the  -specification  must  set  out  the  part  re- 
ferred  to  in  totidem   verbis,  whether  it  be  instructions  given  or 
instructions  refused.     When  the  error  alleged  is  to  a  ruling  upon 
the  report  of  a  master,  the  specification  must  state  the  exception 
to  the  report  and  the  action  of  the  court  upon  it.     (3)  A  brief 
of  the   argument,  exhibiting  a  clear  statement  of  the  points  of 
law  or   fact  to  be  discussed,  with   a  reference  to  pages  of  the 
record,  and  the  authorities  relied  upon  in  support  of  each  point. 
When  a  statute  of  a  State  is  cited,  so  much  thereof  as  may  be 
deemed  necessary  to  the  decision  of  the  case  must  be  printed  at 
length.22     The  counsel  for  a  defendant  in  error  or  an  appellee 
must  file  with  the  clerk  twenty-five  printed  copies  of  his  argu- 
ment at  least  three  days  before  the  case  is  called  for  hearing. 
His  brief  must  be  of  a  like  character  with  that  required  of  the 
plaintiff  in  error  or  appellant,  except  that  no  specification  of 
errors  is  required,  and  no  statement  of  the  case,  unless  that  pre- 
sented by  the  plaintiff  in  error  or  appellant  is  controverted.23 
When  there  is  no  assignment  of  errors,  as  required  by  the  Re- 
vised Statutes,24  counsel  will  not  be  heard,  except  at  the  request 
of  the  court ;  and  errors  not  specified  according  to  this  rule  will 
be  disregarded ;  but  the  court,  at  its  option,  may  notice  a  plain 
error  not  assigned  or  specified.25     When  according  to  this  rule  a 
plaintiff  in  error  or  appellant  is  in  default,  the  case  may  be  dis- 
missed on   motion;26  and  when   an   appellee  or  a  defendant  in 
error  is  in  default  under  this  rule,  he  will  not  be   heard  except 
on  his  adversary's  consent  and  at  the  request  of  the  court.27     No 
printed  argument  will  be  received  after  the  oral  argument  begins 

22  Supreme  Court  Rule  21.  25  Supreme  Court  Tliilo  21. 

23  Supreme  Court  Rule  21.  26  Supreme  Court  Rule  21. 
2*  See  §  406 ;  and  U.  S.  R.  S.  §  997.              2*  Supreme  Court  Rule  21. 


622 


WRITS   OF   ERROR   AND   APPEALS. 


[CHAP.  XXX. 


or  after  a  case  has  been  submitted,  except  upon  leave  granted  in 
open  court  after  notice  to  opposing  counsel.28 

When  there  is  no  appearance  for  the  plaintiff  in  error  when  the 
case  is  called  for  argument,  the  defendant  may  have  him  called 
and  have  the  writ  of  error  or  appeal  dismissed,  or  may  open  the 
record  and  pray  for  an  affirmance.29  When  the  defendant  in  error 
then  fails  to  appear,  the  court  may  proceed  to  hear  argument 
on  the  part  of  the  plaintiff,  and  to  give  judgment  according  to 
the  right  of  the  cause.30  When  a  case  is  reached  and  no  appear- 
ance is  entered  for  either  party,  the  case  is  dismissed  at  the  cost 
of  the  plaintiff.31  A  printed  argument  filed  on  behalf  of  either 
party  is  equivalent  to  an  appearance  on  his  behalf.32 

When  no  counsel  appears  in  the  argument  for  either  of  the 
parties  and  no  printed  brief  or  argument  has  been  filed  on  his 
behalf,  only  one  counsel  will  be  heard  for  the  adverse  party.33 
Otherwise,  each  party  is  entitled  to  be  heard  by  two  counsel  and 
no  more,  except  by  leave  of  the  court.34  Two  hours  on  each 
side  is  allowed  on  the  argument  of  an  appeal  or  writ  of  error, 
and  one  hour  on  the  argument  of  a  motion.35  By  leave  of  the 
court  granted  before  the  argument  begins  more  time  may  be 
allowed.36  The  time  may  be  apportioned  between  counsel  on 
each  side  at  their  discretion  ;  but  a  fair  opening  of  the  case  must 
be  made  by  the  party  having  the  opening  and  closing  argu- 
ments.37 The  plaintiff  in  error  or  appellant  is  entitled  to  open 
and  conclude  the  case.38  When  there  are  cross  appeals,  they  are 
argued  together  as  one  case,  and  the  plaintiff  below  has  the 
right  to  open  and  conclude  the  argument.39 

No  rehearing  or  reaigument  will  be  allowed  when  not  applied 
for  till  after  the  term  at  which  a  cause  is  decided.40  Nor,  at 
least  in  an  equity  case,  after  the  cause  has  been  remitted  to  the 
court  below,41  unless  the  mandate  has  been  recalled.42  Nor  after 
the  decision  of  any  case,  unless  a  justice  who  concurred  in  the 


28  Supreme 

29  Supreme 

80  Supreme 

81  Supreme 

82  Supreme 

83  Supreme 
34  Supreme 
85  Supreme 

36  Supreme 

37  Supreme 


Court  Rule  20. 
Court  Rule  16. 
Court  Rule  17. 
Court  Rule  18. 
Court  Rule  20. 
Court  Rule  21. 
Court  Rule  21. 
Court  Rules  22  and  6. 
Court  Rule  22. 
Court  Rule  22. 


38  Supreme  Court  Rule  22. 

39  Supreme  Court  Rule  22. 

40  Hudson  v.  Guestier,  7  Cranch,  1. 

41  Browder  v.  McArtliur,  7  Wheat.  58 
Sibbald  v.  U.  S.,  12  Pet.  488;  Washing 
ton  Bridge  Co.  v.  Stewart.  3  How.  413 
Peck  v.  Sanderson,  18  How.  42. 

42  Killian  v. Ebbinghaus,  111  U.  S.  798 
Ex  parte  Crenshaw,  15  Pet.  119  ;  U.  S 
r.  Gomez,  23  How.  326. 


§  409.]  DECISION    OF   APPEALS   AND    WRITS    OF   ERROR.  623 

decision  moves  for  a  rehearing,  even  if  the  court  were  equally 
divided.43  The  proper  practice  for  a  party  who  desires  a  rehear- 
ing is  to  submit  without  argument  a  brief  printed  or  written 
petition  or  suggestion  of  the  points  thought  important.44 

§  409.  Decision  of  Appeals  and  Writs  of  Error  by  Supreme 
Court.  —  On  a  writ  of  error  from  a  State  court  the  Supreme 
Court  may  re-affirm,  reverse,  modify,  or  affirm  the  judgment  or 
decree  below ;  and  has  discretionary  power  to  award  execution, 
or  remand  the  case  to  the  court  to  which  the  writ  of  error  issued.1 
The  usual  practice  is  to  return  to  the  State  court  a  mandate 
directing  that  further  proceedings,  if  so  decided,  be  taken  in 
conformity  with  the  opinion  of  the  Supreme  Court.2  Should  the 
State  court  refuse  to  obey  the  mandate,  a  second  writ  of  error 
may  issue.3  Upon  a  second  writ  of  error,  it  has  been  held  that 
when  a  cause  has  been  remanded  for  final  judgment,  nothing  is 
brought  up  for  revision  except  the  proceedings  of  the  subordi- 
nate court  subsequent  to  the  mandate.4  Upon  such  second  writ 
of  error  the  Supreme  Court  in  one  case  entered  a  decree,  and 
issued  a  writ  of  possession  to  carry  the  same  into  effect.5  Upon 
appeals  from  and  writs  of  error  to  Circuit  and  District  Courts 
of  the  United  States,  the  Supreme  Court  cannot  issue  execution, 
but  sends  a  special  mandate  directing  the  inferior  court  what  to 
do.6  The  mandate  may  be  recalled  from  the  inferior  court,  and 
corrected  or  set  aside.7  On  a  mandate  affirming  a  decree  the 
inferior  court  can  only  record  the  mandate,  and  execute  the 
mandate  and  decree.8  It  has  no  power  subsequently  to  amend 
the  decree.9  Where  a  judgment  or  decree  for  the  payment  of 
money  is  affirmed  by  the  Supreme  Court  upon  writ  of  error  or 
appeal,  interest  is  awarded  to  the  respondent  or  defendant  in 
error  from  the  date  of  the  judgment  or  decree  until  its  payment, 

43  Brown  v.  Aspden,  14  How.  25 ;  U.  S.  Martin  v.  Hunter,   1    Wheat.   304,   355 ; 

v.  Knight,  1  Black,  488;  Public  Schools  v.  Roberts  v.  Cooper,  20  How.  467;  Tyler 

Walker,  9  Wall.  603.  v.  Magwire,  17  Wall.  253,  284. 

**  Public  Schools  v.  Walker,  9  Wall.  5  Tvler  v.  Magwire,  17  Wall.  253,  292. 
603.  e  u".  S.  R.  S.  §701. 

§  409.  i  U.  S.  R.  S.  §  709.  1  Killian  v.  Ebbinghaus,  111  U.  S.  798  ; 

2  Tyler  v.  Magwire,  17  Wall.  253,  261.  Ex  parte  Crenshaw,  15  Pet.  119  ;  U.  S.  v. 

3  Martin    v.    Hunter,    1    Wheat.  304  ;  Gomez,  23  How.  326. 

Roberts  v.  Cooper,  20  How.  467 ;  Tyler  v.  8  Durant  v.  Essex  Co.,  101   U.  S.  555. 

Magwire,  17  Wall.  253.  Rut  see   Campbell  v.  James,  31  Fed.  II. 

*  Sizer  v.  Many,  16  How.  98 ;  Corning  525. 
r.  Troy  Iron  Nail  Factory,  15  How.  451,  »  Durant  v.  Essex  Co.,  101  U.  S.  555. 

466;    Himely   v.   Rose,   5  Cranch,   313; 


G24 


WRITS    OF    ERROR    AND    APPEALS. 


[CHAP.  XXX. 


at  the  same  rate  that  similar  judgments  bear  interest  in  the 
courts  of  the  State  where  such  judgment  is  rendered.10  In  the 
case  of  decrees,  the  award  of  interest  is  discretionary.11  Where 
proceedings  under  the  judgment  or  decree  below  have  been 
stayed,  and  the  Supreme  Court  considers  that  the  writ  of  error 
or  appeal  was  taken  merely  for  delay,  damages  at  the  rate  of  ten 
per  cent,  in  addition  to  interest,  may  be  awarded.12  A  less  sum 
may  also  be  awarded  as  damages  for  delay,  in  addition  to  in- 
terest.13 Unless  interest  is  included  in  the  mandate,  it  cannot 
be  awarded  by  a  Circuit  Court  after  the  affirmance.14 


i°  Supreme  Court  Rule  23;  U.  S.  R.  S. 
§  1010;  Perkins  v.  Fourniquet,  14  How. 
328  ;  McNiel  v.  Holbrook,  12  Pet.  84. 

u  Supreme  Court  Rule  23;  U.  S.  R.  S. 
§  1010. 

i'2  Supreme  Court  Rule  23  ;  U.  S.  R.  S. 
§  1010;  Barrow  v.  Hill,  13  How.  54;  Sut- 


ton v.  Bancroft,  23  How.  320  ;  Kilbourne 
v.  State  Savings  Institution,  22  How. 
503. 

13  West  Wisconsin  Ry.  Co.  v.  Foley, 
94  U.  S.  100. 

1*  Boyce  v.  Grundy,  9  Pet.  275,  289. 


APPENDIX. 


I. 

FORMS. 


The  following  forms  have  been  selected  and  copied  almost  verbatim  from 
precedents  which  have  been  actually  used  in  the  courts.  The  author  has  in- 
serted them  by  the  advice  of  the  publisher  and  other  friends,  in  the  hope  that 
they  may  be  of  some  use  to  the  profession  ;  but  he  disclaims  all  responsibility 
for  their  correctness. 

Form  I.  —  Bill  in  Equity. 

Circuit  Court  of  the  United  States,  Southern  District  of  New  York. 

The  Webster  Loom  Company 
against 
Elias  S.  Higgins,  Henry  M.  Brooks,  and  Eugene   )■  In  Equity. 
Higgins,  doing  business  under  the  name  and 
style  of  Elias  S.  Higgins  &  Co. 

To  the  Honorable  the  Judges  of  the  Circuit  Court  of  the  United  States,  in  and  for 
the  Southern  District  of  New  York. 

The  Webster  Loom  Company,  a  corporation  organized  under  and 
pursuant  to  the  laws  of  the  State  of  New  York,  and  having  its  prin- 
cipal place  of  business  in  the  City  of  New  York  in  said  State,  brings 
this  its  bill  of  complaint  against  Elias  S.  Higgins,  Henry  M.  Brooks, 
and  Eugene  Higgins,  all  of  the  City,  County,  and  State  of  New  York, 
and  citizens  of  said  State,  and  doing  business  under  the  name  and 
style  of  Elias  S.  Higgins  &  Company. 

And,  thereupon,  your  orator  complains  and  says  that  heretofore  and 
before  the  27th  day  of  August,  1872,  one  WTilliam  Webster,  then  of 
Morrisania,  in  the  State  of  New  York,  was  the  original  and  first  in- 
ventor of  a  certain  new  and  useful  improvement  in  looms  for  weav- 
ing pile  fabrics,  not  known  or  used  by  others  in  this  country,  and  not 
patented  or  described  in  any  printed  publication  in  this  or  any  for- 
eign country,  before  his  invention  or  discovery  thereof,  and  not  in 
public  use  or  on  sale  for  more  than  two  years  prior  to  his  application 
for  a  patent  therefor. 

40 


626  APPENDIX. 

And  your  orator  further  shows  unto  your  Honors  that  the  said 
William  Webster  so  being  the  inventor  of  said  improvement,  made 
application  to  the  Commissioner  of  Patents,  in  accordance  with  the 
then  existing  laws  of  the  United  States,  and  complied,  iu  all  respects 
with  the  conditions  and  requirements  of  said  laws. 

And,  thereafter,  on  the  27th  day  of  August,  1872,  Letters  Patent  of 
the  United  States  numbered  No.  130,961,  signed,  sealed  and  executed 
in  due  form  of  law,  and  bearing  date  the  day  and  year  last  aforesaid, 
were  issued  to  said  William  Webster  whereby  there  was  secured  to 
him  and  to  his  heirs  and  assigns  for  the  term  of  seventeen  years  from 
the  27th  day  of  August,  1872,  the  full  and  exclusive  right  of  making, 
using  and  vending  the  said  improvement  throughout  the  United 
States  and  the  Territories  thereof,  as  by  a  certified  copy  of  said  Let- 
ters Patent,  in  Court  to  be  produced,  will  more  fully  appear. 

And  your  orator  further  shows,  that  by  an  instrument  in  writing, 
bearing  date  the  first  day  of  October,  1872,  the  said  William  Webster 
duly  assigned,  transferred  and  set  over  unto  himself,  jointly  with 
Cornelius  M.  Meserole  and  William  G.  Smith,  all  his  the  said  Web- 
ster's right,  title  and  interest  in  and  to  said  Letters  Patent  and  the 
invention  thereby  secured,  which  said  assignment  was  duly  recorded 
on  the  day  of  ,  18     ,  in  the    Patent   Office  of  ,the  United 

States,  in  Liber  ,  as  by  said  assignment,  with  the  certificate  of 
recording  thereto  affixed,  or  a  duly  certified  copy  of  said  assignment, 
in  Court  to  be  produced,  will  more  fully  and  at  large  appear. 

And  your  orator  further  shows,  that  by  an  instrument  in  writing, 
bearing  date  the  20th  day  of  October,  1873,  the  said  Webster,  Meser- 
ole and  Smith  duly  assigned,  transferred  and  set  over  unto  your  ora- 
tor all  their,  and  each  of  their  right,  title  and  interest  in  and  to  said 
Letters  Patent  and  the  invention  thereby  secured,  which  said  assign- 
ment was  duly  recorded  on  the  day  of  ,  18  ,  in  the  Patent 
Office  of  the  United  States,  in  Liber  ,  as  by  said  assignment,  with 
the  certificate  of  recording  thei-eto  affixed,  or  a  duly  certified  copy  of 
said  assignment,  in  Court  to  be  produced,  will  more  fully  and  at  large 
appear. 

And  your  orator  further  shows,  that  thereafter,  to  wit,  on  or 
about  the  26th  day  of  May,  1874,  the  said  Webster  individually,  and 
the  said  Webster,  Meserole  and  Smith,  sold,  assigned,  transferred 
and  set  over  unto  your  orator  all  and  every  right  and  cause  of  action 
which  they  the  said  Webster,  Meserole  and  Smith  might  have, 
jointly  or  severally,  against  any  person,  firm  or  corporation  arising 
out  of  the  infringement  of  the  said  Letters  Patent,  and  your  orator 
by  means  of  said  assignments  became  vested  with  the  right  to  re- 
cover such  damages  and  profits  as  the  said  Webster;  Meserole  and 


FOKMS.  627 

Smith  were  jointly  or  severally  entitled  to  recover  since  the  said  date 
of  the  said  patent  and  prior  to  the  assignment  thereof  by  the  said 
Webster,  Meserole  and  Smith  to  your  orator  on  or  about  the  20th  day 
of  October,  1873. 

And  your  orator  further  shows  that  by  virtue  of  the  assignments 
aforesaid  your  orator  became  and  now  is  the  sole  and  exclusive  owner 
of  said  Letters  Patent  and  of  the  invention  and  improvement  therein 
described  and  claimed  and  of  all  rights  secured  by  said  Letters  Pat- 
ent since  the  date  thereof,  and  is  entitled  to  be  protected  in  the 
enjoyment  of  the  same. 

And  your  orator  further  shows  upon  information  and  belief,  that 
prior  to  the  assignment  of  the  said  Letters  Patent  to  your  orator,  the 
said  "Webster,  Meserole  and  Smith  recovered  a  decree  upon  said 
Letters  Patent  in  a  suit  in  the  Circuit  Court  of  the  United  States  for 
the  District  of  New  Jersey  against  the  New  Brunswick  Carpet  Com- 
pany ;  and  also  commenced  a  suit  upon  said  Letters  Patent  in  the 
Circuit  Court  of  the  United  States  for  the  District  of  Massachusetts 
against  the  firm  of  Gilbert  and  Taft  by  whom  the  looms  used  by  the 
New  Brunswick  Carpet  Company  were  constructed  at  Worcester, 
Massachusetts,  and  in  which  said  last  named  suit  the  defendants  by 
their  counsel  consented  to  a  decree  restraining  the  construction  of 
further  looms  of  the  kind  made  and  sold  by  the  said  Gilbert  and 
Taft  to  the  New  Brunswick  Carpet  Company  ;  and  on  the  27th  day 
of  April,  1874,  recovered  a  decree  upon  said  Letters  Patent  against 
one  John  Cochrane,  Jr.,  in  the  Circuit  Court  of  the  United  States  for 
the  District  of  Massachusetts,  who  was  also  using  looms  constructed 
by  the  said  Gilbert  and  Taft.  That  on  or  about  the  first  day  of 
June,  1874,  a  suit  was  commenced  in  the  Circuit  Court  of  the  United 
States  for  the  Southern  District  of  New  York,  against  Elias  S.  Hig- 
gins  and  Nathaniel  D.  Higgins  for  the  infringement  of  said  Letters 
Patent.  That  at  the  October  Term  of  said  Court  in  the  year  1878,  a 
decision  was  rendered  in  said  suit  by  the  Honorable  Hoyt  H. 
Wheeler,  denying  the  relief  prayed  for  in  said  suit  and  directing 
that  a  decree  be  entered  dismissing  the  Bill  of  Complaint  with 
costs. 

That  said  decree  was  duly  entered  and  an  appeal  was  duly  taken  to 
the  Supreme  Court  of  the  United  States. 

That  said  cause  came  on  to  be  heard  at  the  October  term  of  said 
Supreme  Court  in  the  year  1881,  and  a  decision  was  rendered  sus- 
taining the  validity  of  said  Letters  Patent  and  adjudging  the  in- 
fringement of  said  Letters  Patent  by  the  said  defendants  Elias  S. 
Higgins  and  Nathaniel  D.  Higgins,  and  directing  that  the  decree  of 
the    said  Circuit   Court  be  reversed  and  the  cause  remanded  with 


628  APPENDIX. 

instructions  to  enter  a  decree  in  favor  of  the  complainants  and  to  take 
such  further  proceedings  as  law  and  justice  might  require. 

That  thereafter  a  decree  against  said  defendants  was  duly  entered 
in  said  Circuit  Court  for  the  Southern  District  of  New  York  in  con- 
formity with  the  mandate  of  the  said  Supreme  Court. 

All  which  matters  and  things  will  more  fully  and  at  large  ap- 
pear by  reference  to  said  decisions  and  decrees,  or  duly  authenticated 
copies  thereof  here  in  Court  to  be  produced,  to  which  your  orator 
craves  leave  to  refer. 

And  your  orator  further  shows  that  but  for  the  infringement 
herein  complained  of,  and  others  of  like  character,  your  orator  would 
still  be  in  the  undisturbed  possession,  use  and  enjoyment  of  the  ex- 
clusive privilege  secured  by  the  said  Letters  Patent,  and  in  receipt 
of  the  profits  of  the  same. 

And  your  orator  further  shows  unto  your  Honors,  as  it  is  informed 
and  believes,  that  since  the  date  of  said  Letters  Patent,  the  defend- 
ants herein  named,  well  knowing  all  the  facts  hereinbefore  set  forth, 
and  against  the  will  of  your  orator,  and  in  violation  of  your  orator's 
rights,  have  been  and  are  now  jointly  infringing  said  Letters  Patent 
within  the  District  aforesaid,  and  elsewhere  within  the  United  States, 
by  constructing  or  causing  to  be  constructed,  and  by  using  and  causing 
to  be  used,  looms  for  weaving  pile  fabrics,  each  of  which  contains  the 
invention  described  and  claimed  in  the  said  Letters  Patent,  all  which 
acts  and  doings  are  contrary  to  equity  and  good  conscience,  and  tend 
to  the  manifest  injury  of  your  orator  in  the  premises. 

Forasmuch  as  your  orator  can  have  no  adequate  relief,  except  in 
this  court,  and  to  the  end,  therefore,  that  the  defendants  may,  if  they 
can  show  why  your  orator  should  not  have  the  relief  hereby  prayed, 
and  may  make  a  full  disclosure  and  discovery  of  all  the  matters 
aforesaid,  and  according  to  the  best  and  utmost  of  their  knowledge, 
remembrance,  information  and  belief,  full,  true,  direct  and  perfect 
answer  make  to  the  matters  hereinbefore  stated  and  charged  ;  but 
not  under  oath,  an  answer  under  oath  being  hereby  expressly  waived. 

And  that  the  defendant  may  be  decreed  to  account  for  and  pay 
over  the  income  or  profits  thus  unlawfully  derived  from  the  violation 
of  your  orator's  rights,  and  be  restrained  from  any  further  violation 
of  said  rights,  your  orator  prays  that  your  Honors  may  grant  a  writ 
of  injunction,  issuing  out  of  and  under  the  seal  of  this  Honorable 
Court,  perpetually  enjoining  and  restraining  the  said  defendants, 
their  clerks,  attorneys,  agents,  servants  and  workmen  from  any ' 
further  construction,  sale  or  use  in  any  manner  of  said  patented  im- 
provement, or  any  part  thereof,  in  violation  of  your  orator's  rights  as 
aforesaid,  and  that  the  material  now  in  possession  or  use  of  the  said 


FORMS.  629 

defendants  may  be  destroyed  or  delivered  up  to  your  orator   for  that 
purpose. 

And  that  your  Honors,  upon  the  rendering  of  the  decree  above 
prayed,  may  assess  or  cause  to  be  assessed,  in  addition  to  the  profits 
to  be  accounted  for  by  the  defendants  as  aforesaid,  the  damages  your 
orator  has  sustained  by  reason  of  such  infringement,  and  that  your 
Honors  may  increase  the  actual  damages  so  assessed  to  a  sum  equal 
to  three  times  the  amount  of  such  assessment  under  the  circum- 
stances of  the  wilful  and  unjust  infringement  by  said  defendants  as 
herein  set  forth. 

And  your  orator  further  prays  that  a  provisional  or  preliminary 
injunction  be  issued  restraining  the  said  defendants  from  any  further 
infringement  of  said  Letters  Patent  pending  this  cause,  and  for  such 
other  and  further  relief  as  the  equity  of  the  case  may  require,  and  to 
your  Honors  may  seem  meet. 

May  it  please  your  Honors  to  grant  unto  your  orator,  not  only  a 
writ  of  injunction  conformable  to  the  prayer  of  this  bill,  but  also  a 
writ  of  subpoena  of  the  United  States  of  America,  directed  to  the  said 
Elias  S.  Higgins,  Henry  M.  Brooks,  and  Eugene  Higgins,  command- 
ing them  on  a  day  certain  to  appear  and  answer  unto  this  bill  of 
complaint,  and  to  abide  and  perform  such  order  and  decree  in  the 
premises  as  to  the  Court  shall  seem  proper  and  required  by  the  prin- 
ciples of  equity  and  good  conscience. 

Brown  &  Jones, 

Solicitors  for  Complainant  and  of  Counsel. 
Webster  Loom  Company, 

by  Wm.  G.  Smith,  President. 
United  States  of  America,  )       . 
Southern  District  of  New  York  > 

On  this  19th  day  of  August,  1889,  before  me  personally  appeared 
Wm.  G.  Smith,  the  President  of  the  Webster  Loom  Company, 
the  complainant  above  named,  who  being  by  me  duly  affirmed,  de- 
poses and  says,  that  he  is  the  President  of  the  Webster  Loom  Com- 
pany and  familiar  with  its  business,  and  that  he  has  read  the 
foregoing  bill  of  complaint,  and  knows  the  contents  thereof,  and  that 
the  same  is  true  of  his  own  knowledge,  except  as  to  the  matters 
therein  stated  on  information  and  belief,  and  as  to  those  matters  he 
believes  it  to  be  true. 

Affirmed  and  subscribed  before  me,  this  19th  day  of  August,  1889. 

Wm.  G.  Smith. 
Anthony  Gref, 

Notary  Public,  Kings  County. 

Certificate  filed  in  N.  Y.  Co. 


630  APPENDIX. 


Form  II. — Precipe  for  Subpcena  ad  Bespondendum. 

Circuit   Court  of  the  United  States,  for  the  Southern  District  of 

New  York. 
John  Doe      * 

against         V  In  Equity. 
Richard  Roe.  ) 

John  A.  Shields,  Clerk  Circuit  Court,  U.  S.  Southern  District  of  N.  Y.: 

You  will  please  issue  a  Subpoena  to  the  defendant  Kichard  Eoe  in 
the  above  entitled  action,  returnable  on  the  first  Monday  of  January, 

1890. 

Brown  &  Jones,  Solicitors  for  Complainant, 

111  Broadway,  New  York,  N.  Y. 
Dated  New  York,  December  1,  1889. 


Form  III.  —  Subposna. 

The  President  of  the  United  States  of  America,  to  Richard  Roe,  greet- 
ing : 

You  are  hereby  commanded  that  you  Bichard  Eoe  personally  ap- 
pear before  the  Judges  of  the  Circuit  Court  of  the  United  States  of 
America,  for  the  Southern  District  of  New  York,  in  the  Second 
Circuit  Court,  in  equity,  on  the  first  Monday  of  January,  A.  D.  1890, 
wherever  the  said  Court  shall  then  be,  to  answer  a  bill  of  complaint 
exhibited  against  you  in  the  said  Court  by  John  Doe,  and  do  further 
and  receive  what  the  said  Court  shall  have  considered  in  that  behalf. 
And  this  you  are  not  to  omit  under  the  penalty  on  you  of  two  hun- 
dred and  fifty  dollars. 

Witness,  Honorable  Melville  W.  Fuller,  Chief  Justice  of  the 
Supreme  Court  of  the  United  States,  at  the  City  of  New  York,  on 
the  tenth  day  of  December,  in  the  year  one  thousand  eight  hundred 
and  eighty-nine,  and  of  the  Independence  of  the  United  States  of 
America,  the  one  hundred  and  thirteenth. 

John  A.  Shields,  Clerk. 
Brown  &  Jones,  Complainants  SoVrs, 

111  Broadway,  New  York,  N.  Y. 

The  Defendant  is  required  to  enter  appearance  in  the  above  cause, 
in  the  Clerk's  office  of  this  Court,  on  or  before  the  first  Monday  of 
January,  1890,  or  the  bill  will  be  taken  pro  confesso  against  him. 

John  A.  Shields,  Clerk. 


FORMS.  631 


Form  IV.  —  Precipe  for  Appearance. 

Circuit  Court  of  the  United  States  for  the  Southern  District  of 

New  York. 
John  Doe     ~\ 

against         >  In  Equity. 
Richard  Roe.  ) 

To  John  A.  Shields,  Esq.,  Clerk  of  the  U.  S.  Circuit  Court  for  the  Southern 
District  of  New  York. 
You  will  please  enter  my  appearance  for  the  defendant  Richard 
Roe  in  the  above  entitled  suit. 
Yours,  &c;, 

John  S.  White,  Solicitor  for  Defendant, 

319  Broadway,  New  York,  N.  Y. 
New  York,  December  18, 1889. 


Form  V.  —  Demurrer. 

Circuit  Court  of  the  United  States  for  the  Southern  District  of 

New   York. 

John  Styles  \ 

against  >  In  Equity. 

Robert  Roe  aud  Richard  Doe.  ) 

The  demurrer  of  the  above-named  defendant  Robert  Roe  to  the  bill 
of  complaint  of  the  above-named  plaintiff. 

This  defendant,  by  protestation,  not  confessing  or  acknowledging 
all  or  any  of  the  matters  or  things  in  the  said  bill  of  complaint 
contained  to  be  true  in  such  manner  and  form  as  the  same  are  herein 
set  forth  and  alleged,  doth  demur  to  the  said  bill.  And  for  causes  of 
demurrer  showeth, 

I.  That  it  appeareth  by  the  plaintiff's  own  showing  by  the  said  bill, 
that  he  is  not  entitled  to  the  relief  prayed  by  the  bill  against  this 
defendant. 

II.  That  it  appears  by  the  said  bill  that  there  are  divers  other 
persons  who  are  necessary  parties  to  the  said  bill,  but  who  are  not 
made  parties  thereto.  And  in  particular  it  appears  that  the  said 
Richard  Doe  has  been  duly  adjudicated  a  bankrupt,  and  that  Henry 
Brown  has  been  duly  appointed  assignee  of  his  estate,  and  that  it 
appears  by  the  said  bill  that  said  Henry  Brown  as  assignee  as  afore- 
said is  a  necessary  party  to  the  said  bill ;  but  that  said  Henry  Brown 
is  not  made  a  party  thereto. 


632 


APPENDIX. 


III.  That  the  said  bill  is  exhibited  against  these  defendants,  and 
against  several  other  defendants  to  the  said  bill,  for  several  and  dis- 
tinct and  independent  matters  and  causes  which  have  no  relation  to 
each  other,  and  in  which  or  in  the  greater  part  of  which  this  defendant 
is  in  no  way  interested  or  concerned,  and  ought  not  to  be  implicated. 

Wherefore,  and  for  divers  other  good  causes  of  demurrer  appear- 
ing on  the  said  bill,  this  defendant  doth  demur  thereto.  And  he 
prays  the  judgment  of  this  Honorable  Court  whether  he  shall  be 
compelled  to  make  any  answer  to  the  said  bill ;  and  he  humbly  prays 
to  be  hence  dismissed  with  his  reasonable  costs  in  this  behalf  sus- 
tained. 

Henry  Jones, 

Solicitor  and  of  Counsel  for  Defendant  Robert  Roe, 
111  Broadway,  New  York. 

I   hereby  certify  that  the   foregoing  demurrer  is  in  my  opinion 

well  founded  in  point  of  law. 

Henry  Jones, 

of  Counsel  for  Defendant  Robert  Roe. 


New  York,  V- 
New  York. ) 


New  York,  August  9, 1889. 

State  of  New  York, 

City  and  County  of  New 

Southern  District  of 

Eobert  Roe,  being  duly  sworn,  deposes  and  says  :  I  am  one  of  the 

above-named  defendants.     The  foregoing  demurrer  is  not  interposed 

for  delay. 

Robert  Roe. 

Sworn  to  before  me  this  9th  day  of  August,  1889. 
Sylvanus  Brown, 

Notary  Public,  New  York  Co.,  N.  Y. 


SEAL. 


Form  VI.  —  Plea. 

In  the  Circuit  Court  of  the  United  States  for  the  Southern  District 

of  New  York. 

Between  John  Stiles,  Plaintiff,  \ 

and  >  In  Equity. 

Robert  Roe  and  Richard  Doe,  Defendants. ) 

The  plea  of  the  above  named  defendant  Richard  Doe  to  the  bill  of 
complaint  of  the  above  named  plaintiff. 

I,  the  defendant  Richard  Doe,  by  protestation,  not  confessing  or 
acknowledging  all  or  any  part  of  the  matters  or  things  in  the  said 


FORMS.  633 

bill  of  complaint  mentioned  to  be  true  in  such  manner  and  form  as  the 
same  are  therein  set  forth  and  alleged,  do  plead  thereto,  and  for  plea 
say,  that  I  am  not  the  administrator  of  the  estate  of  Jane  Doe  as  in 
the  said  bill  alleged,  and  that  the  administrator  of  said  Jane  Doe  is 
one  Kobert  Hereford,  which  said  administrator  ought  to  be  made  a 
party  or  parties  to  the  said  bill  as  I  am  advised ;  all  which  matters 
and  things  I  aver  to  be  true,  and  plead  the  same  to  the  said  bill, 
and  humbly  crave  the  judgment  of  this  Honorable  Court  whether  I 
ought  to  be  compelled  to  make  any  further  or  other  answer  to  the 
said  bill. 

Henry  Jones, 

Solicitor  and  of  Counsel  for  Defendant  Richard  Doe, 

111  Broadway,  New  York. 

I  hereby  certify  that  the  foregoing  plea  is  in  my  opinion  well 
founded  in  point  of  law.     New  York,  August  9th,  1889. 

Henry  Jones, 
of  Counsel  for  Defendant  Richard  Doe. 
State  of  New  York,  \ 

City  and  County  of  New  York,    >-  ss. 
Southern  District  of  New  York. ) 

Richard  Doe,  being  duly  sworn,  deposes  and  says :  I  am  one  of  the 
above  named  defendants.  The  foregoing  plea  is  true  in  point  of  fact, 
and  is  not  interposed  for  delay.  Sworn  to  before  me,  this  9th  day  of 
August,  1889.  Eichard  Doe. 

Sylvanus  Brown, 
Notary  Public,  N.  Y.  C. 


Form  VII.  —  Answer. 

Circuit  Court  of  the  United  States  for  the  Southern  District  of 
New  York. 

John  Halford  and  Richard  Davis  ) 

against  V  In  Equity. 

Henry  Hawes.  ) 

The  answer  of  the  above-named  defendant  to  the  bill  of  complaint 
of  the  above-named  plaintiffs. 

In  answer  to  the  said  bill,  I,  Henry  Hawes,  say  as  follows :  — 
1.  I  admit  that  I  was  on  the  first  day  of  June,  1864,  seized  in  fee- 
simple  of  the  premises  in  the  first  paragraph  of  the  said  bill  men- 
tioned.     And  I  admit  that  the  indenture  in  the  said  first  paragraph 


634  APPENDIX. 

of  the  said  bill  mentioned  was  of  such  date,  and  made  between  such 
parties  as  in  the  first  said  paragraph  of  the  said  bill  alleged,  and  that 
the  same  was  executed  by  me.  I  believe  that  the  said  indenture  was 
not  executed  by  Henry  Baker  in  the  said  bill  mentioned.  I  believe 
that  the  said  indenture  was  of  or  to  the  purport  and  effect  in  the  said 
first  paragraph  of  the  said  bill  in  that  behalf  set  forth  ;  but  for  my 
greater  certainty  I  crave  to  refer  to  the  same  when  produced  to  this 
Honorable  Court. 

2.  I  do  not  know  aud  cannot  set  forth  as  to  my  belief  or  otherwise, 
whether  the  said  Henry  Baker  died  on  the  seventh  day  of  May,  1867, 
or  when  he  died  ;  or  whether  or  not  having  by  his  will  and  whether 
or  not  dated  the  tenth  day  of  January,  1867,  or  of  what  other  date, 
devised  to  the  plaintiffs  and  their  heirs,  all  estates  vested  in  him  by 
way  of  mortgage,  or  appointed  the  plaintiffs  to  be  his  executors ;  nor 
whether  the  said  will  was  or  not  on  the  first  day  of  July,  1867,  or 
when  in  fact,  proved  by  the  plaintiffs  in  the  Surrogate's  Court  for 
the  city  and  county  of  New  York  or  how  otherwise ;  nor  whether  the 
said  plaintiffs  thereby  or  in  fact  became,  nor  whether  they  now  are, 
the  legal  personal  representatives  of  the  said  Henry  Baker ;  but  I 
have  no  reason  to  doubt  that  the  facts  are  as  in  that  behalf  alleged  in 
the  said  bill. 

3.  The  said  Henry  Baker  was  a  bachelor,  without  any  near  rela- 
tions, and  for  many  years  previously  to  the  year  1864,  and  thencefor- 
ward to  his  death,  he  suffered  from  continual  ill-health  and  infirmity. 
My  mother,  Sarah  Hawes,  was  in  the  service  of  the  said  Henry  Baker 
as  house  keeper  from  the  year  1855  down  to  the  time  of  the  death  of 
the  said  Henry  Baker,  and  was  in  continual  attendance  upon  him  ; 
and  the  said  Henry  Baker  frequently  expressed  to  my  said  mother 
his  gratitude  for  her  attention  to  his  comfort  in  that  his  illness. 

4.  I  attained  my  age  of  twenty-one  years  in  the  year  1864.  In  the 
early  part  of  that  year  my  said  mother  applied  to  the  said  Henry 
Baker  to  advance  me  the  sum  of  one  thousand  dollars  to  enable  me 
to  enter  business,  which  he  agreed  to  do  on  having  the  repayment 
thereof  with  interest  secured  by  the  said  indenture  of  the  first  day  of 
June,  1864. 

5.  In  the  month  of  May,  1864,  the  said  Henry  Baker  wrote,  signed, 
and  sent  to  me  a  letter  bearing  no  date,  containing  the  words  and 
figures  following  (that  is  to  say)  :  "  All  is  arranged  about  the  se- 
curity you  are  to  give  me.  I  hope  I  shall  never  have  occasion  to 
enforce  it ;  and  that  nothing  will  compel  me  to  change  my  intention 
of  rewarding  your  mother  and  yourself  for  her  long  and  faithful  ser- 
vices to  me,"  —  as  by  such  letter  when  produced  will  appear. 

6.  I  have  never  made  any  payments  whatsoever  on  account  of  in- 


FORMS.  635 

terest  due  on  the  said  indenture,  and  I  was  never  called  upon  to  pay 
interest  thereon  by  the  said  Henry  Baker  in  his  lifetime. 

7.  My  said  mother  died  on  the  twenty-seventh  day  of  December, 
1867. 

8.  Under  the  circumstances  hereinbefore  appearing  I  submit  that 
nothing  is  due  on  the  said  indenture  from  me  to  the  plaintiffs,  whether 
as  such  alleged  personal  representatives  or  otherwise,  but  I  admit  that 
nothing  has  ever  been  paid  on  account  of  the  principal  money  secured 
thereby. 

9.  I  do  not  know,  and  cannot  set  forth,  as  to  my  belief  or  other- 
wise, whether  the  plaintiffs  did  on  the  seventh  day  of  April,  1873, 
discover,  but  I  admit  that  it  is  the  fact,  that  I  intend  to  pull  down 
the  said  house  in  the  said  bill  mentioned,  and  that  I  have  advertised 
the  bricks  composing  the  same  to  be  sold  as  building  materials.  I 
deny  that  it  is  true  that  I  have  entered  into  a  contract  with  John 
Smithers  or  with  any  other  person  for  the  execution  of  the  work  of 
pulling  down  the  same. 

10.  I  admit  that  if  the  said  house  be  pulled  down,  the  said  prem- 
ises would  be  an  insufficient  security  for  the  sum  of  one  thousand 
dollars  with  interest  thereon  at  the  rate  of  five  per  centum  per  annum 
from  the  first  day  of  June,  1864.  But  I  submit  that  I  have  a  right 
to  pull  down  the  said  house,  and  to  sell  the  bricks  composing  the 
same  as  building  materials,  and  that  the  injunction  awarded  against 
me  by  this  Honorable  Court  on  the  sixteenth  day  of  April,  1873, 
ought  to  be  dissolved,  and  that  the  said  bill  ought  to  be  dismissed 
with  costs. 

Henry  Hawes. 
Robert  Jones, 

Solicitor  for  Henry  Hawes, 

111  Broadway,  New  York. 

defendant's  oath  to  answer. 
State  of  New  York, 
City  and  County  of  New  York, 
Southern  District  of  New  York 

Henry  Hawes,  being  duly  sworn,  deposes  and  says  :  T  am  the  above- 
named  defendant.  So  much  of  the  foregoing  answer  as  concerns  my 
own  acts  and  deeds  is  true  to  the  best  of  my  own  knowledge  ;  and  so 
much  thereof  as  concerns  the  acts  or  deeds  of  any  other  person  or 
persons,  I  believe  to  be  true. 

Henry  Hawes. 

Sworn  to  before  me  this  20th  day  of  July,  1875, 
Sylvanus  Brown, 

Notary  Public,  New  York  County. 


636  APPENDIX. 


Form  VIII.  —  Disclaimer. 


Circuit  Court  of  the  United  States  for  the  Southern  District  of 
New  York. 


Robert  Aber 

against  >  In  Equity, 


llnE 
Richard  Flagg.) 


The  disclaimer  of  the  defendant,  Richard  Flagg,  to  the  bill  of  com- 
plaint of  the  complainant,  Robert  Aber. 

This  defendant,  saving  and  reserving  to  himself  any  and  all  ad- 
vantages that  might  be  taken  by  exception  to  said  bill,  saith,  that  he 
doth  not  know  that  he,  this  defendant,  to  his  knowledge  and  belief, 
ever  had,  nor  did  he  claim  or  pretend  to  have,  nor  doth  he  now  claim, 
any  right,  title,  or  interest  of,  in,  or  to  the  estates  and  premises, 
situate  [describing  them],  in  the  said  complainant's  bill  set  forth, 
or  any  part  thereof ;  and  this  defendant  doth  disclaim  all  right, 
title,  and  interest  to  the  said  estate  and  premises  in  [naming  their 
situation],  in  the  said  complainant's  bill  mentioned,  and  every  part 
thereof. 

[Conclusion  as  in  Form  VII.] 


Form  IX.  —  Replication. 

Circuit  Court  of  the  United  States  for  the  Southern  District  of 
New   York. 

John  Stiles,  Plaintiff. 

against 

John  Doe  and  Robert  Roe,  Defendants. 

This  repliant,  John  Stiles,  saving  and  reserving  to  himself  all  and 
all  manner  of  advantage  of  exception,  which  may  be  had  and  taken  to 
the  manifold  errors,  uncertainties,  and  insufficiencies  of  the  answer  of 
the  said  defendants  for  replication  thereunto,  saith,  that  he  doth  and 
will  aver,  maintain,  and  prove  his  said  bill  to  be  true,  certain,  and  suffi- 
cient in  the  law  to  be  answered  unto  by  the  said  defendants,  and 
that  the  answer  of  the  said  defendants  is  very  uncertain,  evasive,  and 
insufficient  in  law,  to  be  replied  unto  by  this  repliant ;  without  that, 
that  any  other  matter  or  thing  in  the  said  answer  contained,  material 
or  effectual  in  the  law  to  be  replied  unto,  and  not  herein  and  hereby 
well  and  sufficiently  replied  unto,  confessed  or  avoided,  traversed  or 


FORMS.  637 

denied,  is  true  ;  all  which  matters  and  things  this  repliant  is  ready  to 
aver,  maintain,  and  prove  as  this  honorable  court  shall  direct,  and 
humbly  prays  as  in  and  by  his  said  bill  he  hath  already  prayed. 

Robert  Jones, 

Solicitor  for  Plaintiff. 

Ill  Broadway,  New  York. 


Form  X.  —  Bill  of  Eevivor. 

United  Sates  Circuit  Court,  Southern  District  of  New  York. 

The  Webster  Loom  Company. 
against 
Emma  L.   Higgins,  Eugene  Higgins   and  Josephine  Brooks, 
as  Executors  of  the  last  Will  and  Testament  of  Elias  S. 
Higgins,  deceased,  Y  In  Equity. 

and 

Jules  Reynal  and  John  H.  Higgins,  surviving  trustees,  and 
Nathalie  Florence  Reynal,  residuary  legatee  under  the  last 
Will  and  Testament  of  Nathaniel  D.  Higgins,  deceased. 

To  the  Honorable,  the  Judges  of  the  Circuit  Court  of  the  United  States,  for  the 
Southern  District  of  Neio  York :  — 

The  Webster  Loom  Company,  a  Corporation  organized  under  and 
pursuant  to  the  Laws  of  the  State  of  New  York,  and  having  its  prin- 
cipal place  of  business  in  the  City  of  New  York  in  said  State,  brings 
this  its  bill  of  revivor  against  Emma  L.  Higgins,  Eugene  Higgins 
and  Josephine  Brooks,  as  Executors  of  the  Last  Will  and  Testament 
of  Elias  S.  Higgins,  deceased,  and  Jules  Reynal  and  John  H.  Hig- 
gins, surviving  trustees,  —  and  Nathalie  Florence  Reynal,  residuary 
legatee  under  the  Last  Will  and  Testament  of  Nathaniel  D.  Higgins, 
deceased.  Said  Emma  L.  Higgins,  Josephine  Brooks,  Eugene  Hig- 
gins, Jules  Reynal,  John  H.  Higgins  and  Nathalie  Florence  Reynal 
being  citizens  of  the  State  of  New  York  and  residents  of  the  City  of 
New  York  in  said  State ;  and  thereupon  your  orator  complains  and 
says  that  on  or  about  the  19th  day  of  June,  1874,  your  orator  filed  a 
bill  in  equity  in  this  Court  against  Elias  S.  Higgins  and  Nathaniel  D. 
Higgins,  alleging  infringement  by  them  of  certain  Letters  Patent  of 
the  United  States,  which  were  numbered  No.  130,961  and  dated  August 
27th,  1872,  of  which  your  orator  was  at  that  time,  and  is  now,  the 
owner. 


63S  APPENDIX. 

That  thereafter  the  said  Elias  S.  Higgins  and  Nathaniel  D.  Higgins 
having  been  duly  served  with  the  writ  of  subpoena,  appeared  by 
Counsel  and  filed  their  Answer  to  said  bill  of  Complaint,  to  which 
answer  a  replication  was  filed  on  the  part  of  your  orator. 

That  thereafter  your  orator  proceeded  to  take  proof  in  support  of 
its  said  bill  of  complaint ;  and  thereafter  said  defendants  proceeded 
to  take  proofs  in  support  of  their  said  answer  and  in  defense  of  said 
actions. 

That  thereafter  said  suit  was  brought  to  final  hearing  before  the 
Honorable  Hoyt  H.  Wheeler  ;  that  said  Judge  filed  his  decision  on 
the  31st  day  of  May,  1879,  adjudging  invalidity  of  the  fifth  claim  of 
the  patent  —  being  the  claim  in  suit  —  and  dismissing  the  said  bill  of 
complaint,  as  by  reference  to  said  decision  reported  in  15  Blatch- 
ford  446  will  more  fully  and  at  large  appear. 

That  thereafter  your  orator  appealed  to  the  Supreme  Court  of  the 
United  States  from  the  decision  of  the  Circuit  Court  for  the  Southern 
District  of  New  York ;  that  the  said  appeal  was  argued  before  said 
Supreme  Court  of  the  United  States,  and  a  decision  made  by  said 
Court,  the  opinion  being  written  by  Mr.  Justice  Bradley  adjudging 
the  validity  of  said  patent  and  that  defendants  had  infringed  the 
same,  and  remanded  the  cause  to  this  Court,  ordering  a  decree  against 
said  defendants  restraining  them  from  further  infringement,  and  also 
granting  a  reference  to  a  Master  to  ascertain  and  report  damages  and 
profit  caused  by  said  infringement  —  all  of  which  will  more  fully  and 
at  large  appear  by  reference  to  said  decision  reported  in  15  Otto, 
580. 

That  thereafter  the  accounting  in  this  cause  was  commenced  and 
voluminous  proofs  taken. 

That  thereafter  the  Master  filed  his  report  awarding  nominal 
damages  to  your  orator,  against  said  defendants. 

That  thereafter  on  exceptions  duly  filed  to  said  report,  argument 
was  had  before  His  Honor  Judge  Shipman  on  motion  to  confirm  said 
Master's  report;  that  said  Judge  filed  an  opinion  on  the  26th  day  of 
July,  1889,  re-committing  said  accounting  to  the  Master  for  further 
action  in  accordance  with  the  said  opinion.  That  no  order  has  yet 
been  entered  on  Judge  Shipman's  decision. 

That  during  the  pendency  of  said  accounting  the  defendant  Nath- 
aniel D.  Higgins  died,  leaving  a  last  Will  and  Testament,  which  on 
the  31st  day  of  January  1882,  was  admitted  to  probate  in  the  Sur- 
rogate's Court  of  New  York  County,  New  York,  and  letters  executory 
thereupon  were  on  said  31st  day  of  January,  1882,  duly  issued  out  of 
said  Surrogate's  Court  unto  Elias  S.  Higgins,  Jules  Reynal  and  John 
H.  Higgins. 


FORMS.  639 

That  said  Will  after  directing  the  payment  of  an  inconsiderable 
percentage  of  the  testator's  estate  as  specified  legacies  to  certain  per- 
sons therein  named,  directed  the  said  executors  to  hold  in  trust  for 
the  benefit  of  the  testator's  grandchildren,  for  a  period  of  time  that 
has  not  yet  expired,  the  sum  of  One  Million  and  Five  hundred  thou- 
sand dollars,  and  to  pay  the  rest  and  residue  of  testator's  estate  unto 
his  daughter  Nathalie  Florence  Reynal. 

That  on  the  31st  day  of  December,  1888,  said  executors  filed  their 
final  accounting  in  the  office  of  the  Surrogate  of  the  County  of  New 
York,  N.  Y.,  whereby  it  appeared  that  they  had  paid  said  specific 
legacies,  and  that  after  paying  to  Nathalie  F.  Reynal  aforesaid  a  sum 
amounting  to  between  three  and  four  millions  of  dollars,  they  still 
retained  in  trust  for  the  benefit  of  said  grandchildren  of  said  testator 
the  sum  of  One  Million  and  Five  hundred  thousand  dollars. 

That  said  account  was  approved  by  said  Surrogate  and  an  order  was 
entered  in  the  Court  of  said  Surrogate  on  the  31st  day  of  December, 
1888,  discharging  and  releasing  said  Elias  S.  Higgins,  Jules  Reynal 
and  John  H.  Higgins  from  their  duties  as  executors  under  said  last 
Will  and  Testament,  but  directing  them  to  continue  to  hold  said  trust 
fund  of  One  Million  and  Five  hundred  thousand  dollars  as  directed  in 
said  last  Will  and  Testament. 

That  said  Elias  S.  Higgins,  Jules  Reynal  and  John  H.  Higgins 
thenceforth  continued  to  so  act  as  trustees  under  said  Will  as  to  said 
trust  fund,  and  said  Jules  Reynal  and  John  H.  Higgins  are  now  so 
acting. 

That  the  aforesaid  Elias  S.  Higgins  died  upon  the  18th  day  of 
August,  1889,  leaving  a  last  Will  and  Testament,  which  on  the  14th 
day  of  September,  1889,  was  admitted  to  probate  in  the  Surrogate's 
Court  of  New  York  County,  New  York,  and  letters  executory  there- 
upon were  on  said  14th  day  of  September,  1889,  duly  issued  out  of 
said  Surrogate's  Court  unto  Emma  L.  Higgins,  Eugene  Higgins  and 
Josephine  Brooks,  and  still  remain  in  full  force  and  virtue. 

Wherefore,  your  orator  prays  that  the  said  cause  may  be  revived 
by  the  decree  of  this  Honorable  Court,  and  that  it  may  proceed  to  a 
decree  in  its  favor  in  accordance  with  the  prayer  of  the  original  bill 
of  complaint  herein. 

Your  orator  further  prays  that  a  writ  of  subpoena  may  issue  in  due 
form  of  law,  directed  to  the  aforesaid  defendants  Emma  L.  Higgins, 
Eugene  Higgins  and  Josephine  Brooks  as  Executrices  and  Executor 
of  the  Estate  of  Elias  S.  Higgins,  deceased,  and  Jules  Reynal  and 
John  H.  Higgins  as  trustees,  and  Nathalie  Florence  Reynal  as  resid- 
uary legatee  under  the  Will  of  Nathaniel  D.  Higgins,  deceased,  and 
requiring  them  to  appear  and  show  cause,  if  any  they  have,   why 


640 


APPENDIX. 


this  cause  should  not  be  revived  :  and  if  no  cause  shall  be  shown  by- 
said  defendants  why  said  suit  should  not  be  revived,  that  a  decree 
be  entered  reviving  said  suit  in  favor  of  your  orator. 
And  your  orator  will  ever  pray,  &c. 

Webster  Loom  Company,  by 

Wm,  G.  Smith,  Prest. 
Brown  &  Jones, 

Solicitors  and  of  Counsel  for  Complainant, 
5  Beekman  Street,  New  York. 


J 


ss: 


State  of  New  York, 

City  and  County  op   New  Yor 

William  G.  Smith,  being  duly  sworn,  says  that  he  resides  in  the 
City  and  County  of  New  York,  and  is  the  President  of  the  Webster 
Loom  Company,  the  complainant  herein ;  that  he  has  read  the  fore- 
going bill  of  revivor  and  knows  the  contents  thereof  and  that  the 
same  is  true  of  his  own  knowledge. 

Deponent  further  says  that  the  reason  why  this  verification  is  not 
made  by  the  complainant  is,  that  it  is  a  Corporation  ;  that  deponent 
is  an  officer  of  the  same,  to  wit,  President. 

Wm.  G.  Smith. 

Sworn  to  before  me  this  3d  day  of  December,  1889, 
A.  G.  N.  Vermilye, 

Notary  Public,  N.  Y.  Co. 


Form  XI.  —  Notice  of  taking  Testimony. 


Circuit   Court  of  the  United  States  for  the  Southern  District  of 

New   York. 

John  Stiles,  Complainant,  \ 

against  >  In  Equity. 

John  Doe,  Defendant.      ) 

Notice  is  hereby  given,  That  we  shall  proceed  to  take  proofs 
for  final  hearing  on  the  part  of  the  complainant  under  the  67th  Rule 
of  the  Supreme  Court  for  courts  in  equity,  as  amended,  or  in  accord- 
ance with  the  statutes  in  such  case  made  and  provided,  and  in  pur- 
suance of  the  rules  and  practice  of  this  Court,  before  Henry  Roberts, 
an  Examiner  of  this  Court,  or  some  other  proper  officer,  under  said 
statutes  and  rules,  at  Room  4,  Number  206  Broadway,  New  York,  on 
the  20th  day  of  July,  1889,  at  11  o'clock  in  the  forenoon. 


FORMS.  641 

The  names  and  residences  of  the  witnesses  who  live  at  a  greater 
distance  from  the  place  of  trial  than  one  hundred  miles,  whom  it  is 
intended  to  examine,  are  stated  below. 

You  are  invited  to  attend  and  cross-examine  any  witnesses  pro- 
duced. The  examination  will  be  adjourned  from  day  to  day,  and  to 
such  time  and  place  as  may  be  required,  without  further  notice. 

Brown  &  Black, 

Complainant's  Solicitors. 

No.  206  Broadway,  New  York. 
Dated  New  York  City,  July  1,  1889. 

To  Frank  Farwell,  Esq., 

Solicitor  for  Defendant. 

Names  of  Witnesses  and  Residences. 

John  Smith  of  Yonkers,  New  York. 
Henry  Robinson  of  Newark,  New  Jersey. 


Form  XII.  —  Master's  Warrant  or  Summons. 

Circuit  Court  of  the   United  States  for  the  Southern  District  of 

New  York. 

John  Doe,  Plaintiff,      \ 

against  >  In  Equity. 

Richard  Roe,  Defendant.) 

In  pursuance  of  the  authority  contained  in  a  decretal  order  made 
in  this  cause  by  the  Honorable  William  J.  Wallace,  Circuit  Judge, 
and  the  Honorable  Nathaniel  Shipman,  District  Judge,  at  a  stated 
Term  of  this  court  held  at  the  United  States  Court  House  in  the  City 
of  New  York  on  the  5th  day  of  July,  A.  D.  1888,  I,  Benjamin  Smith, 
one  of  the  Masters  of  said  Court,  do  hereby  summon  you,  John  Doe, 
complainant  and  Richard  Roe,  defendant,  to  appear  before  me,  the 
said  Benjamin  Smith,  at  my  office  at  No.  206  Broadway,  in  the  City 
and  County  of  New  York  in  the  Southern  District  of  New  York,  on 
the  fourth  day  of  January,  A.  D.  1889,  at  two  o'clock  in  the  after- 
noon to  attend  a  hearing  before  me,  the  said  master,  of  the  matters 
in  reference  in  the  said  cause  to  be  had  by  virtue  of  the  decretal 
order  aforesaid.     And  hereof  fail  not  at  your  peril. 

Benjamin  Smith,  Master. 
Dated  the  28th  day  of  December,  1888. 

Underwritiag :  To  take  the  account  in  the  suit. 

Benjamin  Smith,  Master. 
To  John  Doe  and  Richard  Roe. 

41 


642  APPENDIX. 


Form  XIII.  —  Notice  accompanying  Draft  of  Master's  Eeport. 

Circuit  Court  of  the   United  States  for  the  Southern  District  of 

New   York. 

John  Doe,  Complainant  ~\ 

against  >  In  Equity. 

Richard  Roe,  Defendant.  ) 

Sirs  :  You  are  hereby  notified  that  I  have  prepared  the  draft  of 
my  Report  upon  the  matters  referred  to  me  as  Master,  by  the  Inter- 
locutory Decree  herein  dated  the  30th  day  of  November,  1887,  and 
that  a  copy  of  such  draft  Report  accompanies  and  is  annexed  to  this 
notice  and  is  herewith  served  upon  you;  you  are  also  hereby  notified 
that  I  shall  sign  and  file  said  Draft  Report  as  my  Report  herein, 
unless  alterations  are  made  by  me  therein,  upon  suggestions  of  coun- 
sel for  either  party  hereto,  and  that  I  appoint  the  26th  day  of  Feb- 
ruary, 1889,  at  my  office,  Room  3,  No.  10  Wall  Street,  in  the  City  and 
County  of  New  York,  at  11  o'clock  in  the  forenoon  of  said  day,  for 
counsel  for  either  party  hereto  to  present  to  me  any  suggestions  of 
amendments  to  or  alterations  of  said  Draft  Report,  and  to  file  with 
me  written  objections  or  exceptions  thereto,  if  any  they  have  to  the 
same. 

Yours,  &c, 

Benjamin  Smith,  Master. 
Dated  New  York,  February  21, 


To  Messrs.  Brown  &  Black,  Complainant's  Solicitors, 

1  Broadway  ; 
and  Robert  Jones,  Defendant's  Solicitor. 

Ill  Broadway,  New  York  City. 


Form  XIV.  —  Writ  of  Ne  Exeat. 

The  President  of  the  United  States  of  America  to  the  Marshal  of  the  Southern 
District  of  New  York: 
Greeting,  —  Whereas  it  is  represented  to  us  in  our  Circuit  Court 
of  the  United  States  for  the  Southern  District  of  New  York  in  equity, 
on  the  part  of  John  Aber,  complainant,  against  Charles  Dutton,  de- 
fendant (among  other  things),  that  he,  the  said  defendant,  is  greatly 
indebted  to  the  said  complainant  and  designs  quickly  to  go  into 
parts  without  the  United  States  (as  by  oath  made  on  that  behalf 
appears),  which  tends  to  the  great  prejudice  and  damage  of  the  said 


FORMS.  643 

complainant.  Therefore,  in  order  to  prevent  this  injustice,  we  do 
hereby  command  you,  that  you  do,  without  delay,  cause  the  said 
Richard  Blodgett  personally  to  appear  before  you,  and  give  sufficient 
bail  or  security  in  the  sum  of  $5,000  that  the  said  Charles  Dutton  will 
not  go,  or  attempt  to  go,  into  parts  without  the  United  States,  with- 
out leave  of  our  said  Court ;  and  in  case  the  said  Charles  Dutton 
shall  refuse  to  give  such  Bail  or  Security,  then  you  are  to  commit  the 
said  Charles  Dutton  to  our  next  prison,  there  to  be  kept  in  safe 
custody,  until  he  shall  do  it  of  his  own  accord;  and,  when  you 
shall  have  taken  such  security,  you  are  forthwith  to  make  and  re- 
turn a  certificate  thereof  to  us  in  our  said  Circuit  Court  of  the 
United  States  for  the  Southern  District  of  New  York  distinctly 
and  plainly  under  your  hand,  together  with  this  Writ. 

Witness,  the  Honorable  Melville  W.  Fuller,  Chief  Justice  of  the 
Supreme  Court  of  the  United  States,  at  the  City  of  New  York,  in 
the  County  and  State  of  New  York,  the  thirteenth  day  of  Novem- 
ber, one  thousand  eight  hundred  and  eighty-nine. 

Joiin  A.  Shields,  Clerk. 

Frank  Jones,  Solicitor  for  Complainant. 
Ill  Broadway,  New  York. 

Indorsement:  Writ  of  Ne  Exeat  for  the  sum  of  $  5,000. 
Let  the  within  Writ  issue. 

E.  Henry  Lacombe,  Circuit  Judge. 


Form  XV.  —  Wrtt  of  Habeas  Corpus. 

The  President  of  the  United  States  of  America  to  Martin  T.  McMahnn,  Marshal 
of  the  United  States  for  the  Southern  District  of  New  York,  Greeting  : 

We  command  you,  That  you  have  the  body  of  John  Doe,  by  you 
imprisoned  and  detained,  as  it  is  said,  together  with  the  time  and 
cause  of  such  imprisonment  and  detention,  by  whatsoever  name  said 
John  Doe  shall  be  called  or  charged,  before  a  stated  term  of  the  Cir- 
cuit Court  of  the  United  States  for  the  Southern  District  of  New 
York,  to  be  held  in  the  Post-Office  Building  in  the  city  and  county 
and  State  of  New  York,  on  the  ninth  day  of  December,  1889,  to  do 
and  receive  what  shall  then  and  there  be  considered  concerning  said 
John  Doe.  and  have  vou  then  and  there  this  writ. 


644 


APPENDIX. 


Witness,  Hon.  Melville  W.  Fuller,  Chief  Justice  of  the  United 
States,  the  fifth  day  of  December,  one  thousand  eight  hundred  and 

eighty-nine. 

John  A.  Shields,  Clerk. 
Robert  Jones,  Petitioner's  Attorney, 
206  &  208  Broadway,  New  York. 

Indorsement :  Let  the  within  writ  issue. 

E.  Henry  Lacombe,  Circuit  Judge. 


Form  XVI.  —  Petition  for  Removal  from  a  State  Court  to 
a  Circuit  Court  of  the  United  States. 

Supreme  Court,  County  of  New  York. 

John  Stiles,  Plaintiff, 

against 
Robert  Roe,  Defendant. 

To  the  Honorable,  the  Supreme  Court  of  the  State  of  New  York,  held  in  and  for 
the  County  of  New  York :  — 

Your  petitioner  respectfully  shows  to  this  Honorable  Court  that 
the  matter  and  amount  in  dispute  in  the  above  entitled  suit  exceeds, 
exclusive  of  costs,  the  sum  or  value  of  two  thousand  dollars. 

That  the  controversy  in  said  suit  is  between  citizens  of  different 
States,  and  that  the  Petitioner,  the  defendant  in  the  above  entitled 
suit,  was  at  the  time  of  the  commencement  of  this  suit,  and  still  is, 
citizen  of  the  State  of  Massachusetts,  and  that  the  plaintiff,  John 
Stiles,  was  then,  and  still  is,  citizen  of  the  State  of  New  York. 

And  your  petitioner  offers  herewith  a  good  and  sufficient  surety  for 
his  entering  in  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York,  on  the  first  day  of  its  next  session,  a  copy  of 
the  record  in  this  suit,  and  for  paying  all  costs  that  may  be  awarded 
by  said  Circuit  Court,  if  said  court  shall  hold  that  this  suit  was 
wrongfully  or  improperly  removed  thereto. 

And  he  prays  this  Honorable  Court  to  proceed  no  further  herein, 
except  to  make  the  order  of  removal  required  by  law,  and  to  accept 
the  said  surety  and  bond,  and  to  cause  the  record  herein  to  be  re- 
moved into  said  Circuit  Court  of  the  United  States  in  and  for  the 
Southern  District  of  New  York  ;  and  he  will  ever  pray. 

Robert  Roe. 
White  &  Black,  Petitioner's  Attorneys, 
206  Broadway,  New  York,  N.  Y. 


FOKMS.  645 

City  and  County  of  New  York. 

Robert  Roe  deposes  and  says  :  I  am  the  above-named  petitioner. 
The  foregoing  petition  is  true  to  my  own  knowledge,  except  as  to  the 
matters  therein  stated  to  be  alleged  upon  information  and  belief,  and 
as  to  those  matters  I  believe  it  to  be  true. 

Robert  Roe. 
Sworn  to  before  me,  this  18th  day  of  December,  1889, 

Sylvanus  Brown,  Notary  Public, 
New  York  County. 


On  this  18th  day  of  December,  1889,  in  the  City  and  County  of 
New  York,  before  me,  a  notary  public,  in  and  for  the  City  and  County 
of  New  York,  personally  appeared  Robert  Roe,  to  me  known  to  be  the 
individual  who  executed  the  foregoing  petition,  and  then  and  there 
acknowledged  to  me  that  he  had  executed  the  same. 

Sylvanus  Brown,  Notary  Public, 
New  York  County. 


Form  XVII.  —  Bond  on  Removal. 

Know  all  Men  by  these  Presents,  That  Robert  Roe,  of  Boston, 
Massachusetts,  as  principal,  and  Peter  Kenny,  as  surety,  are  holden 
and  stand  firmly  bound  unto  John  Stiles  in  the  penal  sum  of  one 
thousand  dollars,  for  the  payment  whereof  well  and  truly  to  be  made 
unto  the  said  John  Stiles,  his  heirs,  representatives  and  assigns,  we 
bind  ourselves,  our  heirs,  representatives  and  assigns,  jointly  and  sev- 
erally firmly  by  these  presents. 

Upon  condition  nevertheless  that,  whereas  the  said  Robert  Roe  has 
petitioned  the  Supreme  Court  of  the  State  of  New  York,  held  in  and 
for  the  County  of  New  York,  for  the  removal  of  a  certain  cause  therein 
pending,  wherein  the  said  John  Stiles  is  plaintiff,  and  the  said  Robert 
Roe  is  defendant ;  to  the  Circuit  Court  of  the  United  States  in  and 
for  the  Southern  District  of  New  York. 

Now,  if  the  said  Robert  Roe  shall  enter  in  the  said  Circuit  Court  of 
the  United  States,  on  the  first  day  of  its  next  session,  a  copy  of  the 
record  in  said  suit,  and  shall  well  and  truly  pay  all  costs  that  may  be 
awarded  by  said  Circuit  Court  of  the  United  States,  if  said  Court  shall 
hold  that  said  suit  was  wrongfully  or  improperly  removed  thereto  then 
this  obligation  shall  be  void ;  otherwise  it  shall  remain  in  full  force 
and  virtue. 


646  APPENDIX. 

In  Witness  Whereof  the  said  Robert  Roe  and  Peter  Kenny  have 

hereunto  set  their  hands  and  seals  this  18th  day  of  December,  A.  D. 

1889. 

Robert  Roe.         [l.  s.] 

Peter  Kenny.      [l.  s.] 

City  and  County  of  New  York. 

Peter  Kenny,  being  duly  sworn,  deposes  and  says  :  I  reside  in  the 
City,  County,  and  State  of  New  York,  and  am  a  freeholder  therein  ; 
and  am  worth  the  sum  of  two  thousand  dollars  over  and  above  all 
property  exempt  from  sale  on  execution. 

Peter  Kenny. 

Sworn  to  before  me,  this  18th  day  of  December,  1889, 
Sylvanus  Brown,  Notary  Public, 
New  York  County. 


On  this  18th  day  of  December,  1889,  in  the  city  and  county  of 
New  York,  before  me,  a  notary  public  in  and  for  the  city  and  county 
of  New  York,  personally  appeared  the  above-named  Robert  Roe  and 
Peter  Kenny,  and  then  and  there  each  of  them  severally  acknowledged 
that  he  had  executed  the  foregoing  bond. 

Sylvanus  Brown,  Notary  Public, 

New  York  County. 
Approved  by 

George  C.  Barrett,  J.  S.  C. 


Form  XVIII.  —  Pinal  Record  in  Equity. 
Circuit  Court  of  the  United  States,  Southern  District  of  New  York. 

John  Stiles  ) 

against         >  In  Equity. 
Robert  Roe.  ) 

The  complainant  in  the  above  entitled  cause  filed  his  bill  of  com- 
plaint, which  is  hereunto  annexed,  on  2d  day  of  January,  one  thou- 
sand eight  hundred  and  eighty-seven,  and  the  writ  of  subpoena  was 
thereupon  issued,  and  returned  personally  served. 

An  appearance  was  duly  entered  for  the  defendant  by  Henry  Smith, 
his  solicitor,  and  on  the  first  Monday  of  March  thereafter  an  answer 
to  said  bill  of  complaint  was  filed,  the  same  being  hereto  annexed. 

On  the  first  Monday  of  April  thereafter,  the  complainant  filed  a 
replication,  the  same  being  hereto  annexed. 


FORMS.  647 

On  the  19th  day  of  March,  one  thousand  eight  hundred  and  eighty- 
seven,  an  order  of  the  Court  granting  to  the  complainant  a  preliminary 
injunction  as  prayed  for  in  the  bill  of  complaint  was  filed  and  entered, 
which  said  order  is  hereunto  annexed. 

Testimony  was  thereafter  taken  by  the  respective  parties,  and  filed 
in  the  clerk's  office  of  the  said  Circuit  Court. 

Afterwards,  and  at  the  October  term  of  1888  of  said  Court,  present 
the  Honorable  Nathaniel  D.  Shipman,  District  Judge,  the  said  cause 
came  on  to  be  heard  on  the  pleadings  and  proofs,  and  was  argued  by 
counsel.  On  the  3d  day  of  November,  one  thousand  eight  hundred 
and  eighty-eight,  a  decree  of  said  Court  was  filed  and  entered  in 
favor  of  the  complainant,  by  which  it  was  adjudged  that  a  perpetual 
injunction  should  issue  against  the  defendant,  and  that  an  account- 
ing be  had  before  John  A.  Shields,  Master  of  said  Court ;  the  said 
order  being  hereto  annexed. 

On  the  9th  day  of  June,  one  thousand  eight  hundred  and  eighty- 
nine,  the  said  Master  filed  his  report,  upon  which,  and  on  the  11th 
day  of  October,  one  thousand  eight  hundred  and  eighty-nine,  the  said 
court  caused  its  final  decree  to  be  entered  herein,  the  same  being 
hereto  annexed. 

And  the  costs  having  been  taxed  by  the  clerk  at  seven  hundred  and 
fifty  dollars,  the  process,  pleadings,  and  decrees  together  with  other 
papers  filed  in  said  cause,  are  duly  annexed  hereunto. 

Wherefore  let  the  said  John  Stiles  recover  of  said  Robert  Eoe  the 
sum  of  two  thousand  dollars  as  adjudged  in  said  final  decree,  together 
with  the  further  sum  of  seven  hundred  and  fifty  dollars,  the  cost  and 
charges  as  taxed,  making  in  the  aggregate  the  sum  of  two  thousand 
seven  hundred  and  fifty  dollars. 

Signed  and  enrolled  this  loth  day  of  November,  A.  D.  1889. 

John  A.  Shields,  Clerk. 


Form  XIX.  —  Appeal  and  Allowance. 

Circuit  Court  of  the  United  States,  for  the  Southern  District  of 
New  York. 

John  Doe,  Plaintiff,  Appellant, 

against 
Richard  Roe,  Defendant,  Respondent. 

The  above  named  plaintiff,  John  Doe,  conceiving  himself  aggrieved 
by  the  order  entered  on  December  3,  1889,  in  the  above  entitled  pro- 
ceeding, doth  hereby  appeal  from  said  order  to  the  Supreme  Court  of 
the  United  States,  and  he  prays  that  this  his  appeal  may  be  allowed  ; 


643 


APPENDIX. 


and  that  a  transcript  of  the  record  and  proceedings  and  papers  upon 
which  said  order  was  made,  duly  authenticated,  may  be  sent  to  the 
Supreme  Court  of  the  United  States. 

Robert  Jones, 

Attorney  for  Plaintiff  and  Appellant,  John  Doe, 

206  &  208  Broadway,  New  York,  N.  Y. 
New  York,  December  17,  1889. 

And  now,  to  wit :  On  December  18th,  1889  ;  it  is  ordered  that  the 
appeal  be  allowed  as  prayed  for. 

E.  Henry  Lacombe,  Circuit  Judge. 


Form  XX.  —  Citation  on  Appeal. 
United  States  of  America,  ss  : 
To  Richard  Roe,  Greeting : 

You  are  hereby  cited  and  admonished  to  be  and  appear  at  a 
Supreme  Court  of  the  United  States,  to  be  holden  at  Washington, 
on  the  second  Monday  of  October,  eighteen  hundred  and  ninety,  pur- 
suant to  an  appeal,  filed  in  the  Clerk's  Office  of  the  Circuit  Court  of 
the  United  States  for  the  Southern  District  of  New  York,  wherein 
John  Doe  is  appellant  and  Eichard  Eoe  is  respondent,  to  show  cause, 
if  any  there  be,  why  the  judgment  in  the  said  writ  of  error  mentioned 
should  not  be  corrected,  and  speedy  justice  should  not  be  done  to  the 
parties  on  that  behalf. 

Witness  the  Hon.  Melville  W.  Fuller,  Chief  Justice  of  the  United 
States  this  18th  day  of  December,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  eighty  nine. 

E.  Henry  Lacombe,  Circuit  Judge. 


Form  XXL  —  Supersedeas  Bond. 

Circuit  Court  of  the  United  States  of  America,  for  the  Southern  District 
of  New  York,  in  the  Second  Circuit. 

John  Doe,  Appellant, 

against 
Richard  Roe,  Respondent. 

Know  all  men  by  these  presents,  That  we,  John  Doe  and 
George  Palliser,  both  of  the  city,  county,  and  State  of  New  York, 
are  held  and  firmly  bound  unto  the  above  named  Richard  Roe  in  the 


FORMS.  649 

sum  of  two  hundred  and  fifty  dollars,  to  be  paid  to  the  said  Richard 
Roe,  for  the  payment  of  which  well  and  truly  to  be  made,  we  bind 
ourselves,  and  each  of- us,  our  and  each  of  our  heirs,  executors,  and 
administrators,  jointly  and  severally  firmly  by  these  presents.  Sealed 
with  our  seals,  and  dated  the  18th  day  of  December,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  eighty  nine.  "Whereas, 
the  above  named  John  Doe  has  prosecuted  an  appeal  to  the  Supreme 
Court  of  the  United  States,  to  reverse  the  decree  rendered  in  the 
above  entitled  suit,  by  the  Judge  of  the  Circuit  Court  of  the  United 
States,  for  the  Southern  District  of  New  York. 

Now  therefore,  the  condition  of  this  obligation  is  such,  that  if 
the  above  named  John  Doe  shall  prosecute  said  appeal  to  effect  and 
answer  all  damages  and  costs,  if  he  fail  to  make  said  appeal  good, 
then  this  obligation  shall  be  void,  otherwise  the  same  shall  be  and 
remain  in  full  force  and  virtue. 

John  Doe  [l.  s.]. 

George  Palliseb  [l.  s.]. 

Sealed  and  delivered,  and  taken  and  acknowledged, 
this  18th  day  of  December,  1889,  before  me 
John  A.  Shields,  U.  S.  Commissioner. 
Approved  by 

E.  Henry  Lacombe, 
Circuit  Judge. 

Form  XXII.  —  Writ  of  Error  to  Federal  Court. 

United  States  of  America,  ss  : 

The  President  of  the  United  States,  To  the  Honorable  the.  Judges  of  the  Circuit 
Court  of  the  United  States  for  the  Southern  District  of  New  York,  Greeting  : 

Because  in  the  record  and  proceedings,  as  also  in  the  rendition  of 
the  judgment  of  a  plea  which  is  in  the  said  Circuit  Court,  before  you, 
or  some  of  you,  between  John  Stiles,  plaintiff,  and  Richard  Roe,  de- 
fendant, a  manifest  error  hath  happened,  to  the  great  damage  of  the 
said  defendant,  Richard  Roe,  as  by  his  complaint  appears.  We  being 
willing  that  error,  if  any  hath  been,  should  be  duly  corrected,  and 
full  and  speedy  justice  done  to  the  parties  aforesaid  in  this  behalf,  do 
command  you,  if  judgment  be  therein  given,  that  then  under  your 
seal,  distinctly  and  openly,  you  send  the  record  and  proceedings  afore- 
said, with  all  things  concerning  the  same,  to  the  Supreme  Court  of  the 
United  States,  together  with  this  writ,  so  that  you  have  the  same  at 
Washington,  on  the  second  Monday  of  October  next,  in  the  said 
Supreme  Court,  to  be  then  and  there  held,  that  the  record  and  pro- 


650  APPENDIX. 

ceedings  aforesaid  being  inspected,  the  said  Supreme  Court  may 
cause  further  to  be  done  therein  to  correct  that  error,  what  of  right, 
and  according  to  the  laws  and  customs  of  the  United  States,  should 
be  done. 

Witness  the  Honorable  Melville  W.  Fuller,  Chief  Justice  of  the 
said  Supreme  Court,  the  19th  day  of  September,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  eighty-nine. 

James  Hall  McKexxey, 
Clerk  of  the  Supreme  Court  of  the  United  States. 
Allowed  by 

Samuel  A.  Blatchford, 
Justice. 


Form  XXIII.  —  Writ  of  Error  to  State  Court. 
United  States  of  America,  ss  : 

The  President  of  the  United  States  of  America,  To  the  Honorable  the  Judges  of 
the  Supreme  Judicial  Court  of  the  Commonwealth  of  Massachusetts, 

Greeting  :  —  Because  in  the  record  and  proceedings,  as  also  in  the 
rendition  of  the  judgment  of  a  plea  which  is  in  the  said  Supreme 
Judicial  Court  of  the  Commonwealth  of  Massachusetts  before  you,  or 
some  of  you,  being  the  highest  court  of  law  or  equity  of  the  said 
State  in  which  a  decision  could  be  had  in  the  said  suit  between  John 
Doe  and  Bichard  Boe,  wherein  was  drawn  in  question  the  validity  of 
a  treaty  or  statute  of,  or  an  authority  exercised  under,  the  United 
States,  and  the  decision  was  against  their  validity  ;  or  wherein  was 
drawn  in  question  the  validity  of  a  statute  of,  or  an  authority  exer- 
cised under,  said  State,  on  the  ground  of  their  being  repugnant  to  the 
Constitution,  treaties,  or  laws  of  the  United  States,  and  the  decision 
was  in  favor  of  such  their  validity  ■  or  wherein  was  drawn  in  ques- 
tion the  construction  of  a  clause  of  the  Constitution,  or  of  a  treat}-, 
or  statute  of,  or  commission  held  under  the  United  States,  and  the 
decision  was  against  the  title,  right,  privilege,  or  exemption  specially 
set  up  or  claimed  under  such  clause  of  the  said  Constitution,  treaty, 
statute,  or  commission  ;  a  manifest  error  hath  happened  to  the  great 
damage  of  the  said  Bichard  Boe,  as  by  his  complaint  appears.  We 
being  willing  that  error,  if  any  hath  been,  should  be  duly  corrected, 
and  full  and  speedy  justice  done  to  the  parties  aforesaid  in  this  be- 
half, do  command  you,  if  judgment  be  therein  given,  that  then  under 
your  seal,  distinctly  and  openly,  you  send  the  record  and  proceedings 
aforesaid,  with  all  things  concerning  the  same,  to  the  Supreme  Court 


FORMS.  651 

of  the  United  States,  together  with  this  writ,  so  that  you  have  the 
same  at  Washington,  on  the  second  Monday  of  October  next,  in  the 
said  Supreme  Court,  to  be  then  and  there  held,  that  the  record  and 
proceedings  aforesaid  being  inspected,  the  said  Supreme  Court  may 
cause  further  to  be  done  therein  to  correct  that  error,  what  of  right, 
and  according  to  the  laws  and  customs  of  the  United  States,  should 
be  done. 

Witness  the  Honorable  Melville  W.  Fuller,  Chief  Justice  of  the 
said  Supreme  Court,  the  18th  day  of  December,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  eighty-nine. 

James  Hall  McKenney, 
Clerk  of  the  Supreme  Court  of  the  United  Slates. 
Allowed  by 

Horace  Gray, 
Justice. 


Form   XXIV.  —  Assignment  of  Errors. 
The  Supreme  Court  of  the  United  States. 

In  the  Matter  of  the  Petition  of  John  Stiles,  Appellant. 

Assignment  of  Errors.  Afterwards  to  wit :  on  the  third  Friday 
of  January  in  the  year  of  our  Lord,  eighteen  hundred  and  ninety  ; 
at  the  October  term  for  eighteen  hundred  and  eighty-nine,  of  the 
Supreme  Court  of  the  United  States,  at  the  Capitol,  in  the  City  of 
Washington  and  District  of  Columbia,  comes  the  said  John  Stiles,  by 
Kobert  Jones,  his  attorney,  and  says  that  in  the  record  and  proceed- 
ings in  the  above  entitled  matter  there  is  manifest  error  in  this,  to 
wit :  — 

i. 

That  the  matters  charged  in  the  complaint  against  John  Stiles  do 
not  constitute  a  crime  by  the  Common  Law  or  under  any  Statute 
of  the  United  States. 

II. 

That  the  matters  testimony  tending  to  prove  which  was  given 
before  John  A.  Shields,  United  States  Commissioner,  in  the  above 
entitled  matter  do  not  constitute  a  crime  by  the  common  law  or  under 
any  Statute  of  the  United  States. 

in. 

That  the  matters  charged  as  a  crime  against  John  Stiles,  as  appears 
by  the  testimony  before  John  A.  Shields,  United  States  Commis- 


652  APPENDIX. 

sioner,  occurred  and  were  committed,  if  they  ever  occurred  or  were 
committed,  within  the  Southern  District  of  New  York,  and  not  with- 
in the  District  of  Connecticut ;  and  that  by  the  Sixth  Amendment  to 
the  Constitution  of  the  United  States,  said  John  Stiles  cannot  be 
tried  upon  said  charges  in  the  District  Court  of  the  United  States  for 
the  District  of  Connecticut. 

IV. 

That  the  said  Commissioner  had  no  jurisdiction  to  issue  a  warrant 
for  the  arrest  of  John  Stiles. 

v. 

That  the  Marshal  of  the  United  States  had  no  authority  to  arrest 
or  detain  John  Stiles. 

VI. 

That  the  Circuit  Court  of  the  United  States  for  the  Southern  Dis- 
trict of  New  York  erred  in  not  discharging  the  said  John  Stiles  upon 
the  return  of  the  Writ  of  Habeas  Corpus  herein. 

Wherefore  the  said  John  Stiles  prays  that  the  order  of  the  said 
Circuit  of  the  United  States  for  the  Southern  District  of  New  York 
be  reversed,  and  the  said  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  New  York  be  ordered  to  enter  an  order  directing 
the  discharge  of  the  said  John  Stiles  from  custody. 

Robert  Jones, 

Attorney  for  Appellant, 

206  &  208  Broadway,  New  York. 


Form   XXV. — Praecipe  for  Appearance  in  Supreme  Court. 

Supreme  Court  of  the  United  States. 

No.         October  Term,  1889. 

John  Doe,  Appellant. 

vs. 
Richard  Roe,  Respondent. 

The  Clerk  will  enter  my  appearance  as  Counsel  for  the  Respondent. 

Henry  Smith, 

1  Broadway,  New  York,  N.  Y. 

[Must  be  signed  by  a  member  of  the  Bar  of  Supreme  Court,  United  States. 
Individual  and  not  firm-names  must  be  signed.] 


RECENT  IMPORTANT  STATUTES.  653 


II. 

RECENT  IMPORTANT  STATUTES. 

Judiciary  Act  of  1875,  as  amended  in  1887  and  1SS8,  Acts  of  Fiftieth  Con- 
gress, Sess.  I.,  ch.  866,  approved  August  13th,  1888;  25  St.  at  L.  p.  433:  — 

Chap.  866.  —  An  act  to  correct  the  enrollment  of  an  act  approved  March 
third,  eighteen  hundred  and  eighty-seven,  entitled  "  An  act  to  amend 
sections  one,  two,  three,  and  ten  of  an  act  to  determine  the  jurisdiction 
of  the  circuit  courts  of  the  United  States,  and  to  regulate  the  removal  of 
causes  from  the  State  courts,  and  for  other  purposes,  approved  March 
third,  eighteen  hundred  and  seventy-five." 

"  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  the  act  ap- 
proved March  third,  eighteen  hundred  and  eighty-seven,  entitled 
"  An  act  to  amend  sections  one,  two,  three,  and  ten  of  an  act  to  deter- 
mine the  jurisdiction  of  the  circuit  courts  of  the  United  States,  and 
to  regulate  the  removal  of  causes  from  State  courts,  and  for  other 
purposes,  approved  March  third,  eighteen  hundred  and  seventy-five," 
be,  and  the  same  is  hereby  amended  so  as  to  read  as  follows : 

"Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  the  first  sec- 
tion of  an  act  entitled  '  An  act  to  determine  the  jurisdiction  of  circuit 
courts  of  the  United  States  and  to  regulate  the  removal  of  causes 
from  State  courts,  and  for  other  purposes,'  approved  March  third, 
eighteen  hundred  and  seventy-five,  be,  and  the  same  is  hereby, 
amended  so  as  to  read  as  follows : 

"That  the  circuit  courts  of  the  United  States  shall  have  original 
cognizance,  concurrent  with  the  courts  of  the  several  States,  of  all 
suits  of  a  civil  nature,  at  common  law  or  in  equity,  where  the  matter 
in  dispute  exceeds,  exclusive  of  interest  and  costs,  the  sum  or  value  of 
two  thousand  dollars,  and  arising  under  the  Constitution  or  laws  of 
the  United  States,  or  treaties  made,  or  which  shall  be  made,  under 
their  authority,  or  in  which  controversy  the  United  States  are  plain- 
tiffs or  petitioners,  or  in  which  there  shall  be  a  controversy  between 
citizens  of  different  States,  in  which  the  matter  in  dispute  exceeds, 


654  APPENDIX. 

exclusive  of  interest  and  costs,  the  sum  or  value  aforesaid,  or  a  con- 
troversy between  citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States,  or  a  controversy  between  citizens  of  a  State 
and  foreign  states,  citizens,  or  subjects,  in  which  the  matter  in  dis- 
pute exceeds,  exclusive  of  interest  and  costs,  the  sum  or  value  afore- 
said, and  shall  have  exclusive  cognizance  of  all  crimes  and  offences 
cognizable  under  the  authority  of  the  United  States,  except  as  other- 
wise provided  by  law,  and  concurrent  jurisdiction  with  the  district 
courts  of  the  crimes  and  offences  cognizable  by  them.  But  no  person 
shall  be  arrested  in  one  district  for  trial  in  another  in  any  civil  action 
before  a  circuit  or  district  court ;  and  no  civil  suit  shall  be  brought 
before  either  of  said  courts  against  any  person  by  any  original  pro- 
cess or  proceeding  in  any  other  district  than  that  whereof  he  is  an 
inhabitant,  but  where  the  jurisdiction  is  founded  only  on  the  fact 
that  the  action  is  between  citizens  of  different  States,  suit  shall  be 
brought  only  in  the  district  of  the  residence  of  either  the  plaintiff  or 
the  defendant ;  nor  shall  any  circuit  or  district  court  have  cognizance 
of  any  suit,  except  upon  foreign  bills  of  exchange,  to  recover  the 
contents  of  any  promissory  note  or  other  chose  in  action  in  favor  of 
any  assignee,  or  of  any  subsequent  holder  if  such  instrument  be  pay- 
able to  bearer  and  be  not  made  by  any  corporation,  unless  such  suit 
might  have  been  prosecuted  in  such  court  to  recover  the  said  contents 
if  no  assignment  or  transfer  had  been  made ;  and  the  circuit  courts 
shall  also  have  appellate  jurisdiction  from  the  district  courts  under 
the  regulations  and  restrictions  prescribed  by  law." 

That  the  second  section  of  said  act  be,  and  the  same  is  hereby, 
amended  so  as  to  read  as  follows  : 

"Sec.  2.  That  any  suit  of  a  civil  nature,  at  law  or  in  equity, 
arising  under  the  Constitution  or  laws  of  the  United  States,  or 
treaties  made,  or  which  shall  be  made,  under  their  authority,  of 
which  the  circuit  courts  of  the  United  States  are  given  original 
jurisdiction  by  the  preceding  section,  which  may  now  be  pending, 
or  which  may  hereafter  be  brought,  in  any  State  court,  may  be  re- 
moved by  the  defendant  or  defendants  therein  to  the  circuit  court  of 
the  United  States  for  the  proper  district.  Any  other  suit  of  a  civil 
nature,  at  law  or  in  equity,  of  which  the  circuit  courts  of  the  United 
States  are  given  jurisdiction  by  the  preceding  section,  and  which  are 
now  pending,  or  which  may  hereafter  be  brought,  in  any  State  court, 
may  be  removed  into  the  circuit  court  of  the  United  States  for  the 
proper  district  by  the  defendant  or  defendants  therein,  being  non- 
residents of  that  State.  And  when  in  any  suit  mentioned  in  this 
section  there  shall  be  a  controversy  which  is  wholly  between  citizens 
of  different  States,  and  which  can  be  fully  determined  as  between 


RECENT   IMPORTANT   STATUTES.  C55 

them,  then  either  one  or  more  of  the  defendants  actually  interested 
in  such  controversy  may  remove  said  suit  into  the  circuit  court  of 
the  United  States  for  the  proper  district.  And  where  a  suit  is  now 
pending,  or  may  be  hereafter  brought,  in  any  State  court,  in  which 
there  is  a  controversy  between  a  citizen  of  the  State  in  which  the  suit 
is  brought  and  a  citizen  of  another  State,  any  defendant,  being  such 
citizen  of  another  State,  may  remove  such  suit  into  the  circuit  court 
of  the  United  States  for  the  proper  district,  at  any  time  before  the 
trial  thereof,  when  it  shall  be  made  to  appear  to  said  circuit  court 
that  from  prejudice  or  local  influence  he  will  not  be  able  to  obtain 
justice  in  such  State  court,  or  in  any  other  State  court  to  which  the 
said  defendant  may,  under  the  laws  of  the  State,  have  the  right,  on 
account  of  such  prejudice  or  local  influence,  to  remove  said  cause : 
Provided,  That  if  it  further  appear  that  said  suit  can  be  fully  and 
justly  determined  as  to  the  other  defendants  in  the  State  court,  with- 
out being  affected  by  such  prejudice  or  local  influence,  and  that  no 
party  to  the  suit  will  be  prejudiced  by  a  separation  of  the  parties, 
said  circuit  court  may  direct  the  suit  to  be  remanded,  so  far  as  re- 
lates to  such  other  defendants,  to  the  State  court,  to  be  proceeded 
with  therein. 

"  At  any  time  before  the  trial  of  any  suit  which  is  now  pending  in 
any  circuit  court  or  may  hereafter  be  entered  therein,  and  which  has 
been  removed  to  said  court  from  a  State  court  on  the  affidavit  of  any 
party  plaintiff  that  he  had  reason  to  believe  and  did  believe  that, 
from  prejudice  or  local  influence,  he  was  unable  to  obtain  justice  in 
said  State  court,  the  circuit  court  shall,  on  application  of  the  other 
party,  examine  into  the  truth  of  said  affidavit  and  the  grounds  thereof, 
and,  unless  it  shall  appear  to  the  satisfaction  of  said  court  that  said 
party  will  not  be  able  to  obtain  justice  in  such  State  court,  it  shall 
cause  the  same  to  be  remanded  thereto. 

"Whenever  any  cause  shall  be-removed  from  any  State  court  into 
any  circuit  court  of  the  United  States,  and  the  circuit  court  shall 
decide  that  the  cause  was  improperly  removed,  and  order  the  same 
to  be  remanded  to  the  State  court  from  whence  it  came,  such  remand 
shall  be  immediately  carried  into  execution,  and  no  appeal  or  writ 
of  error  from  the  decision  of  the  circuit  court  so  remanding  such 
cause  shall  be  allowed." 

That  section  three  of  said  act  be,  and  the  same  is  hereby,  amended 
so  as  to  read  as  follows  : 

"  Sec.  3.  That  whenever  any  party  entitled  to  remove  any  suit 
mentioned  in  the  next  preceding  section,  except  in  such  cases  as  are 
provided  for  in  the  last  clause  of  said  section,  may  desire  to  remove 
such  suit  from  a  State  court  to  the  circuit  court  of  the  United  States, 


656  APPENDIX. 

he  may  make  and  file  a  petition  in  such  suit  in  such  State  court  at  the 
time,  or  any  time  before  the  defendant  is  required  by  the  laws  of  the 
State  or  the  rule  of  the  State  court  in  which  such  suit  is  brought  to 
answer  or  plead  to  the  declaration  or  complaint  of  the  plaintiff,  for 
the  removal  of  such  suit  into  the  circuit  court  to  be  held  in  the  dis- 
trict where  such  suit  is  pending,  and  shall  make  and  file  therewith  a 
bond,  with  good  and  sufficient  surety,  for  his  or  their  entering  in  such 
circuit  court,  on  the  first  day  of  its  then  next  session,  a  copy  of  the 
record  in  such  suit,  and  for  paying  all  costs  that  may  be  awarded  by 
the  said  circuit  court  if  said  court  shall  hold  that  such  suit  was 
wrongfully  or  improperly  removed  thereto,  and  also  for  their  appear- 
ing and  entering  special  bail  in  such  suit  if  special  bail  was  originally 
requisite  therein.  It  shall  then  be  the  duty  of  the  State  court  to  ac- 
cept said  petition  and  bond,  and  proceed  no  further  in  such  suit ;  and 
the  said  copy  being  entered  as  aforesaid  in  said  circuit  court  of  the 
United  States,  the  cause  shall  then  proceed  in  the  same  manner  as  if 
it  had  been  originally  commenced  in  the  said  circuit  court ;  and  if  in 
any  action  commenced  in  a  State  court  the  title  of  land  be  concerned, 
and  the  parties  are  citizens  of  the  same  State,  and  the  matter  in  dis- 
pute exceed  the  sum  or  value  of  two  thousand  dollars,  exclusive  of 
interest  and  costs,  the  sum  or  value  being  made  to  appear,  one  or 
more  of  the  plaintiffs  or  defendants,  before  the  trial,  may  state  to 
the  court,  and  make  affidavit  if  the  court  require  it,  that  he  or  they 
claim  and  shall  rely  upon  a  right  or  title  to  the  land  under  a  grant 
from  a  State,  and  produce  the  original  grant,  or  an  exemplification 
of  it,  except  where  the  loss  of  public  records  shall  put  it  out  of  his  or 
their  power,  and  shall  move  that  any  one  or  more  of  the  adverse  party 
inform  the  court  whether  he  or  they  claim  a  right  or  title  to  the  land 
under  a  grant  from  some  other  State,  the  party  or  parties  so  required 
shall  give  such  information,  or  otherwise  not  be  allowed  to  plead  such 
grant  or  give  it  in  evidence  upon  the  trial ;  and  if  he  or  they  inform 
that  he  or  they  do  claim  under  such  grant,  any  one  or  more  of  the 
party  moving  for  such  information  may  then,  on  petition  and  bond, 
as  hereinbefore  mentioned  in  this  act,  remove  the  cause  for  trial  to 
the  circuit  court  of  the  United  States  next  to  be  holden  in  such  dis- 
trict; and  any  one  of  either  party  removing  the  cause  shall  not  be 
allowed  to  plead  or  give  evidence  of  any  other  title  than  that  by  him 
or  them  stated  as  aforesaid  as  the  ground  of  his  or  their  claim." 

Sec.  2.  That  whenever  in  any  cause  pending  in  any  court  of  the 
United  States  there  shall  be  a  receiver  or  manager  in  possession  of 
any  property,  such  receiver  or  manager  shall  manage  and  operate 
such  propevt)'  according  to  the  requirements  of  the  valid  laws  of  the 
State  in  which  such  property  shall  be  situated,  in  the  same  manner 


RECENT  IMPORTANT  STATUTES.  657 

that  the  owner  or  possessor  thereof  would  be  bound  to  do  if  in  pos- 
session thereof.  Any  receiver  or  manager  who  shall  willfully  violate 
the  provisions  of  this  section  shall  be  deemed  guilty  of  a  misdemeanor, 
and  shall,  on  conviction  thereof,  be  punished  by  a  fine  not  exceeding 
three  thousand  dollars,  or  by  imprisonment  not  exceeding  one  year, 
or  by  both  said  punishments,  in  the  discretion  of  the  court. 

Sec.  3.  That  every  receiver  or  manager  of  any  property  appointed 
by  any  court  of  the  United  States  may  be  sued  in  respect  of  any  act 
or  transaction  of  his  in  carrying  on  the  business  connected  with  such 
property,  without  the  previous  leave  of  the  court  in  which  such  re- 
ceiver or  manager  was  appointed ;  but  such  suit  shall  be  subject  to 
the  general  equity  jurisdiction  of  the  court  in  which  such  receiver  or 
manager  was  appointed,  so  far  as  the  same  shall  be  necessary  to  the 
ends  of  justice. 

Sec  4.  That  all  national  banking  associations  established  under 
the  laws  of  the  United  States  shall,  for  the  purposes  of  all  actions  by 
or  against  them,  real,  personal,  or  mixed,  and  all  suits  in  equity,  be 
deemed  citizens  of  the  States  in  which  they  are  respectively  located ; 
and  in  such  cases  the  circuit  and  district  courts  shall  not  have  juris- 
diction other  than  such  as  they  would  have  in  cases  between  indi- 
vidual citizens  of  the  same  State. 

The  provisions  of  this  section  shall  not  be  held  to  affect  the  juris- 
diction of  the  courts  of  the  United  States  in  cases  commenced  by  the 
United  States  or  by  direction  of  any  officer  thereof,  or  cases  for  wind- 
ing up  the  aifairs  of  any  such  bank. 

Sec.  5.  That  nothing  in  this  act  shall  be  held,  deemed,  or  construed 
to  repeal  or  affect  any  jurisdiction  or  right  mentioned  either  in  sec- 
tions six  hundred  and  forty-one,  or  in  six  hundred  and  forty-two,  or 
in  six  hundred  and  forty-three,  or  in  seven  hundred  and  twenty-two, 
or  in  title  twenty-four  of  the  Revised  Statutes  of  the  United  States, 
or  mentioned  in  section  eight  of  the  act  of  Congress  of  which  this  act 
is  an  amendment,  or  in  the  act  of  Congress  approved  March  first, 
eighteen  hundred  and  seventy-five,  entitled  "An  act  to  protect  all 
citizens  in  their  civil  and  legal  rights." 

Sec  6.  That  the  last  paragraph  of  section  five  of  the  act  of  Con- 
gress approved  March  third,  eighteen  hundred  and  seventy-five,  en- 
titled "  An  act  to  determine  the  jurisdiction  of  circuit  courts  of  the 
United  States  and  to  regulate  the  removal  of  causes  from  State  courts, 
and  for  other  purposes,"  and  section  six  hundred  and  forty  of  the 
Revised  Statutes,  and  all  laws  and  parts  of  laws  in  conflict  with  the 
provisions  of  this  act,  be,  and  the  same  are  hereby  repealed  :  Provided, 
That  this  act  shall  not  affect  the  jurisdiction  over  or  disposition  of 
any  suit  removed  from  the  court  of  any  State,  or  suit  commenced  in 

42 


658  APPENDIX. 

any  court  of  the  United  States,  before  the  passage  hereof  except  as 
otherwise  expressly  provided  in  this  act. 

Sec.  7.  That  no  person  related  to  any  justice  or  judge  of  any  court 
of  the  United  States  by  affinity  or  consanguinity  within  the  degree 
of  first  cousin  shall  hereafter  be  appointed  by  such  court  or  judge 
to,  or  employed  by  such  court  or  judge  in,  any  office  or  duty  in  any 
court  of  which  such  justice  or  judge  may  be  a  member. 


Acts  of  Fiftieth  Congress,  Sess.  II.,  ch.  236,  approved  February  25,  18S9; 
25  St.  at  L.  p.  693  :  — 

Chap.  236.  —  An  act  to  provide  for  writs  of  error  or  appeals  to  the  Supreme 
Court  of  the  United  States  in  all  cases  involving  the  question  of  the  juris- 
diction of  the  courts  below. 
Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  in  all  cases 
where  a  final  judgment  or  decree  shall  be  rendered  in  a  circuit  court 
of  the  United  States  in  which  there  shall  have  been  a  question  in- 
volving the  jurisdiction  of  the  court,  the  party  against  whom  the 
judgment  or  decree  is  rendered  shall  be  entitled  to  an  appeal  or  writ 
of  error  to  the  Supreme  Court  of  the  United  States  to  review  such 
judgment  or  decree  without  reference  to  the  amount  of  the  same ; 
but  in  cases  where  the  decree  or  judgment  does  not  exceed  the  sum 
of  five  thousand  dollars  the  Supreme  Court  shall  not  review  any 
question  raised  upon  the  record  except  such  question  of  jurisdiction  ; 
such  writ  of  error  or  appeal  shall  be  taken  and  allowed  under  the 
same  provisions  of  law  as  apply  to  other  writs  of  error  or  appeals 
except  as  provided  in  the  next  following  section. 

Sec  2.  That  in  cases  of  judgments  or  decrees  mentioned  in  the 
first  section  of  this  act,  and  heretofore  rendered,  where  the  period  of 
limitation  for  taking  writs  of  error  or  appeals  in  other  cases  has  not 
expired,  appeals  or  writs  of  error  may  be  sued  out  at  any  time  within 
one  year  after  the  passage  of  this  act. 


Acts  of  Forty-Ninth  Congress,  Session  II.,  chapter  359,  approved  March 
3,  1887  ;  24  St.  at  L.  p.  505  :  — 

Chap.  359.  —  An  act  to  provide  for  the  bringing  of  suits  against  the  Govern- 
ment of  the  United  States. 
Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  the  Court  of 
Claims  shall  have  jurisdiction  to  hear  and  determine  the  following 
matters : 


RECENT  IMPORTANT  STATUTES.  659 

First.  All  claims  founded  upon  the  Constitution  of  the  United 
States  or  any  law  of  Congress,  except  for  pensions,  or  upon  any  regu- 
lation of  an  Executive  Department,  or  upon  any  contract,  expressed 
or  implied,  with  the  Government  of  the  United  States,  or  for  dama- 
ges, liquidated  or  unliquidated,  in  cases  not  sounding  in  tort,  in 
respect  of  which  claims  the  party  would  be  entitled  to  redress  against 
the  United  States  either  iu  a  court  of  law,  equity,  or  admiralty  if 
the  United  States  were  suable :  Provided,  however,  That  nothing  iu 
this  section  shall  be  construed  as  giving  to  either  of  the  courts  herein 
mentioned,  jurisdiction  to  hear  and  determine  claims  growing  out  of 
the  late  civil  war,  and  commonly  known  as  "  war  claims,"  or  to  hear 
and  determine  other  claims,  which  have  heretofore  been  rejected,  or 
reported  on  adversely  by  any  court,  Department,  or  commission 
authorized  to  hear  and  determine  the  same. 

Second.  All  set-offs,  counter-claims,  claims  for  damages,  whether 
liquidated  or  unliquidated,  or  other  demands  whatsoever  on  the  part 
of  the  Government  of  the  United  States  against  any  claimant  against 
the  Government  in  said  court :  Provided,  That  no  suit  against  the 
Government  of  the  United  States,  shall  be  allowed  under  this  act 
unless  the  same  shall  have  been  brought  within  six  years  after  the 
right  accrued  for  which  the  claim  is  made. 

Sec.  2.  That  the  district  courts  of  the  United  States  shall  have 
concurrent  jurisdiction  with  the  Court  of  Claims  as  to  all  matters 
named  in  the  preceding  section  where  the  amount  of  the  claim  does 
not  exceed  one  thousand  dollars,  and  the  circuit  courts  of  the  United 
States  shall  have  such  concurrent  jurisdiction  in  all  cases  where  the 
amount  of  such  claim  exceeds  one  thousand  dollars  and  does  not  ex- 
ceed ten  thousand  dollars.  All  causes  brought  and  tried  under  the 
provisions  of  this  act  shall  be  tried  by  the  court  without  a  jury. 

Sec  3.  That  whenever  any  person  shall  present  his  petition  to  the 
Court  of  Claims  alleging  that  he  is  or  has  been  indebted  to  the 
United  States  as  an  officer  or  agent  thereof,  or  by  virtue  of  any  con- 
tract therewith,  or  that  he  is  the  guarantor,  or  surety,  or  personal 
representative  of  any  officer,  or  agent,  or  contractor  so  indebted,  or 
that  he,  or  the  person  for  whom  he  is  such  surety,  guarantor,  or  per- 
sonal representative  has  held  any  office  or  agency  under  the  United 
States,  or  entered  into  any  contract  therewith,  under  which  it  may  be 
or  has  been  claimed  that  an  indebtedness  to  the  United  States  has 
arisen  and  exists,  and  that  he  or  the  person  he  represents  has  applied 
to  the  proper  Department  of  the  Government  requesting  that  the  ac- 
count of  such  office,  agency,  or  indebtedness  may  be  adjusted  and 
settled,  and  that  three  years  have  elapsed  from  the  date  of  such  ap- 
plication and   said   account   still  remains  unsettled  and  unadjusted, 


660  APFSNDIX. 

and  that  no  suit  upon  the  same  has  been  brought  by  the  United 
States,  said  court  shall,  due  notice  first  being  given  to  the  head  of 
said  Department  and  to  the  Attorney-General  of  the  United  States, 
proceed  to  hear  the  parties  and  to  ascertain  the  amount,  if  any,  due 
the  United  States  on  said  account.  The  Attorney-General  shall  rep- 
resent the  United  States  at  the  hearing  of  said  cause.  The  court  may 
postpone  the  same  from  time  to  time  whenever  justice  shall  require. 
The  judgment  of  said  court  or  of  the  Supreme  Court  of  the  United 
States,  to  which  an  appeal  shall  lie,  as  in  other  cases,  as  to  the 
amount  due,  shall  be  binding  and  conclusive  upon  the  parties.  The 
payment  of  such  amount  so  found  due  by  the  court  shall  discharge 
such  obligation.  An  action  shall  accrue  to  the  United  States  against 
such  principal,  or  surety,  or  representative  to  recover  the  amount  so 
found  due,  which  may  be  brought  at  any  time  within  three  years 
after  the  final  judgment  of  said  court.  Unless  suit  shall  be  brought 
within  said  time,  such  claim  and  the  claim  on  the  original  indebted- 
ness shall  be  forever  barred. 

Sec.  4.  That  the  jurisdiction  of  the  respective  courts  of  the  United 
States  proceeding  under  this  act,  including  the  right  of  exception  and 
appeal,  shall  be  governed  by  the  law  now  in  force,  in  so  far  as  the 
same  is  applicable  and  not  inconsistent  with  the  provisions  of  this 
act  5  and  the  course  of  procedure  shall  be  in  accordance  with  the 
established  rules  of  said  respective  courts,  and  of  such  additions  and 
modifications  thereof  as  said  courts  may  adopt. 

Sec.  5.  That  the  plaintiff  in  any  suit  brought  under  the  provisions 
of  the  second  section  of  this  act  shall  file  a  petition,  duly  verified 
with  the  clerk  of  the  respective  court  having  jurisdiction  of  the  case, 
and  in  the  district  where  the  plaintiff  resides.  Such  petition  shall 
set  forth  the  full  name  and  residence  of  the  plaintiff,  the  nature  of 
his  claim,  and  a  succinct  statement  of  the  facts  upon  which  the  claim 
is  based,  the  money  or  any  other  thing  claimed,  or  the  damages 
sought  to  be  recovered  and  praying  the  court  for  a  judgment  or  de- 
cree upon  the  facts  and  law. 

Sec.  6.  That  the  plaintiff  shall  cause  a  copy  of  his  petition  filed 
under  the  preceding  section  to  be  served  upon  the  district  attorney  of 
the  United  States  in  the  district  wherein  suit  is  brought,  and  shall 
mail  a  copy  of  the  same,  by  registered  letter,  to  the  Attorney-General 
of  the  United  States,  and  shall  thereupon  cause  to  be  filed  with  the 
clerk  of  the  court  wherein  suit  is  instituted  an  affidavit  of  such  ser- 
vice and  the  mailing  of  such  letter.  It  shall  be  the  duty  of  the  dis- 
trict attorney  upon  whom  service  of  petition  is  made  as  aforesaid  to 
appear  and  defend  the  interests  of  the  Government  in  the  suit,  and 
within  sixty  days  after  the  service  of  petition  upon  him,  unless  the 


I 


RECENT   IMPORTANT    STATUTES.  661 

time  should  be  extended  by  order  of  the  court  made  in  the  case  to  file 
a  plea,  answer,  or  demurrer  on  the  part  of  the  Government,  and  to 
file  a  notice  of  any  counter-claim,  set-off,  claim  for  damages,  or  other 
demand  or  defence  whatsoever  of  the  Government  in  the  premises  : 
Provided,  That  should  the  district  attorney  neglect  or  refuse  to  file' 
the  plea,  answer,  demurrer,  or  defence,  as  required,  the  plaintiff  may 
proceed  with  the  case  under  such  rules  as  the  court  may  adopt  in  the 
premises;  but  the  plaintiff  shall  not  have  judgment  or  decree  for  his 
claim,  or  any  part  thereof,  unless  he  shall  establish  the  same  by  proof 
satisfactory  to  the  court. 

Sec.  7.  That  it  shall  be  the  duty  of  the  court  to  cause  a  written 
opinion  to  be  filed  in  the  cause,  setting  forth  the  specific  findings  by 
the  court  of  the  facts  therein  and  the  conclusions  of  the  court  upon 
all  questions  of  law  involved  in  the  case,  and  to  render  judgment 
thereon.  If  the  suit  be  in  equity  or  admiralty,  the  court  shall  pro- 
ceed with  the  same  according  to  the  rules  of  such  courts. 

Sec.  8.  That  in  the  trial  of  any  suit  brought  under  any  of  the  pro- 
visions of  this  act,  no  person  shall  be  excluded  as  a  witness  because 
he  is  a  party  to  or  interested  in  said  suit ;  and  any  plaintiff  or 
party  in  interest  may  be  examined  as  a  witness  on  the  part  of  the 
Government. 

Section  ten  hundred  and  seventy-nine  of  the  Revised  Statutes  is 
hereby  repealed.  The  provisions  of  section  ten  hundred  and  eighty 
of  the  Revised  Statutes  shall  apply  to  cases  under  this  act. 

Sec.  9.  That  the  plaintiff  or  the  United  States,  in  any  suit  brought 
under  the  provisions  of  this  act  shall  have  the  same  rights  of  appeal 
or  writ  of  error  as  are  now  reserved  in  the  statutes  of  the  United 
States  in  that  behalf  made,  and  upon  the  conditions  and  limitations 
therein  contained.  The  modes  of  procedure  in  claiming  and  perfect- 
ing an  appeal  or  writ  of  error  shall  conform  in  all  respects,  and  as 
near  as  may  be,  to  the  statutes  and  rules  of  court  governing  appeals 
and  writs  of  error  in  like  causes. 

Sec  10.  That  when  the  findings  of  fact  and  the  law  applicable 
thereto  have  been  filed  in  any  case  as  provided  in  section  six  of  this 
act,  and  the  judgment  or  decree  is  adverse  to  the  Government,  it 
shall  be  the  duty  of  the  district  attorney  to  transmit  to  the  Attorney- 
General  of  the  United  States  certified  copies  of  all  the  papers  filed  in 
the  cause,  with  a  transcript  of  the  testimony  taken,  the  written  find- 
ings of  the  court,  and  his  written  opinion  as  to  the  same  ;  whereupon 
the  Attorney-General  shall  determine  and  direct  whether  an  appeal 
or  writ  of  error  shall  be  taken  or  not;  and  when  so  directed  the 
district  attorney  shall  cause  an  appeal  or  writ  of  error  to  be  perfected 
in  accordance  with  the  terms  of  the  statutes  and  rules  of  practice 


662  APPENDIX. 

governing  the  same :  Provided,  That  no  appeal  or  writ  of  error  shall 
be  allowed  after  six  months  from  the  judgment  or  decree  in  such 
suit.  From  the  date  of  such  final  judgment  or  decree  interest  shall 
be  computed  thereon,  at  the  rate  of  four  per  centum  per  annum,  until 
the  time  when  an  appropriation  is  made  for  the  payment  of  the  judg- 
ment or  decree. 

Sec.  11.  That  the  Attorney-General  shall  report  to  Congress,  and 
at  the  beginning  of  each  session  of  Congress,  the  suits  under  this  act 
in  which  a  final  judgment  or  decree  has  been  rendered  giving  the  date 
of  each,  and  a  statement  of  the  costs  taxed  in  each  case. 

Sec.  12.  That  when  any  claim  or  matter  may  be  pending  in  any  of 
the  Executive  Departments  which  involves  controverted  questions  of 
fact  or  law,  the  head  of  such  Department,  with  the  consent  of  the 
claimant,  may  transmit  the  same,  with  the  vouchers,  papers,  proofs, 
and  documents  pertaining  thereto,  to  said  Court  of  Claims,  and  the 
same  shall  be  there  proceeded  in  under  such  rules  as  the  court  may 
adopt.  When  the  facts  and  conclusions  of  law  shall  have  been  found, 
the  court  shall  report  its  findings  to  the  Department  by  which  it  was 
transmitted. 

Sec.  13.  That  in  every  case  which  shall  come  before  the  Court  of 
Claims,  or  is  now  pending  therein,  under  the  provisions  of  an  act  en- 
titled "  An  act  to  afford  assistance  and  relief  to  Congress  and  the  Ex- 
ecutive Departments  in  the  investigation  of  claims  and  demands 
against  the  Government,"  approved  March  third,  eighteen  hundred 
and  eighty-three,  if  it  shall  appear  to  the  satisfaction  of  the  court, 
upon  the  facts  established,  that  it  has  jurisdiction  to  render  judg- 
ment or  decree  thereon  under  existing  laws  or  under  the  provisions 
of  this  act,  it  shall  proceed  to  do  so,  giving  to  either  party  such 
further  opportunity  for  hearing  as  in  its  judgment  justice  shall 
require,  and  report  its  proceedings  therein  to  either  House  of 
Congress  or  to  the  Department  by  which  the  same  was  referred  to 
said  court. 

Sec  14.  That  whenever  any  bill,  except  for  a  pension,  shall  be 
pending  in  either  House  of  Congress  providing  for  the  payment  of  a 
claim  against  the  United  States,  legal  or  equitable,  or  for  a  grant, 
gift,  or  bounty  to  any  person,  the  House  in  which  such  bill  is  pend- 
ing may  refer  the  same  to  the  Court  of  Claims,  who  shall  proceed 
with  the  same  in  accordance  with  the  provisions  of  the  act  approved 
March  third,  eighteen  hundred  and  eighty-three,  entitled  an  "  Act  to 
afford  assistance  and  relief  to  Congress  and  the  Executive  Depart- 
ments in  the  investigation  of  claims  and  demands  against  the  Gov- 
ernment," and  report  to  such  House  the  facts  in  the  case  and  the 
amount,  where  the  same  can  be  liquidated,  including  any  facts  bearing 


EECENT   IMPORTANT   STATUTES.  663 

upon  the  question  whether  there  has  been  delay  or  laches  in  present- 
ing such  claim  or  applying  for  such  grant,  gift,  or  bounty,  and  any 
facts  bearing  upon  the  question  whether  the  bar  of  any  statute  of 
limitation  should  be  removed  or  which  shall  be  claimed  to  excuse  the 
claimant  for  not  having  resorted  to  any  established  legal  remedy. 

Sec.  15.  If  the  Government  of  the  United  States  shall  put  in  issue 
the  right  of  the  plaintiff  to  recover  the  court  may,  in  its  discretion, 
allow  costs  to  the  prevailing  party  from  the  time  of  joining  such 
issue.  Such  costs,  however,  shall  include  only  what  is  actually  in- 
curred for  witnesses,  and  for  summoning  the  same,  and  fees  paid 
to  the  clerk  of  the  court. 

Sec.  16.  That  all  laws  and  parts  of  laws  inconsistent  with  this  act 
are  hereby  repealed. 


664  APPENDIX. 


III. 

RULES  OF  PRACTICE  IN  EQUITY. 

Preliminary  Regulations. 

1.  The  circuit  courts,  as  courts  of  equity,  shall  be  deemed  always 
open  for  the  purpose  of  filing  bills,  answers,  and  other  pleadings  ; 
for  issuing  and  returning  mesne  and  final  process  and  commissions ; 
and  for  making  and  directing  all  interlocutory  motions,  orders,  rules, 
and  other  proceedings,  preparatory  to  hearing  of  all  causes  upou  their 
merits. 

2.  The  clerk's  office  shall  be  open,  and  the  clerk  shall  be  in  atten- 
dance therein,  on  the  first  Monday  of  every  month,  for  the  purpose 
of  receiving,  entering,  entertaining,  and  disposing  of  all  motions,  rules, 
orders,  and  other  proceedings,  which  are  grantable  of  course  and 
applied  for,  or  had  by  the  parties,  or  their  solicitors,  in  all  causes 
pending  in  equity,  in  pursuance  of  the  rules  hereby  prescribed. 

3.  Any  judge  of  the  circuit  court,  as  well  in  vacation  as  in  term, 
may,  at  chambers,  or  on  the  rule-days  at  the  clerk's  office,  make  and 
direct  all  such  interlocutory  orders,  rules,  and  other  proceedings,  pre- 
paratory to  the  hearing  of  all  causes  upon  their  merits,  in  the  same 
manner  and  with  the  same  effect  as  the  circuit  court  could  make  and 
direct  the  same  in  term,  reasonable  notice  of  the  application  therefor 
being  first  given  to  the  adverse  party,  or  his  solicitor,  to  appear  and 
show  cause  to  the  contrary,  at  the  next  rule-day  thereafter,  unless 
some  other  time  is  assigned  by  the  judge  for  the  hearing. 

4.  All  motions,  rules,  orders,  and  other  proceedings,  made  and 
directed  at  chambers,  or  on  rule-days  at  the  clerk's  office,  whether 
special  or  of  course,  shall  be  entered  by  the  clerk  in  an  order-book,  to 
be  kept  at  the  clerk's  office,  on  the  day  when  they  are  made  and 
directed;  which  book  shall  be  open  at  all  office-hours  to  the  free 
inspection  of  the  parties  in  any  suit  in  equity,  and  their  solicitors. 
And,  except  in  cases  where  personal  or  other  notice  is  specially  re- 
quired or  directed,  such  entry  in  the  order-book  shall  be  deemed  suffi- 
cient notice  to  the  parties  and  their  solicitors,  without  further  service 
thereof,  of   all   orders,  rules,    acts,   notices,    and   other   proceedings 


RULES  OF  PRACTICE  IN  EQUITY.  665 

entered  in  such  order-book,  touching  any  and  all  the  matters  in  the 
suits  to  and  in  which  they  are  parties  and  solicitors.  And  notice  to 
the  solicitors  shall  be  deemed  notice  to  the  parties  for  whom  they 
appear  and  whom  they  represent,  in  all  cases  where  personal  notice  on 
the  parties  is  not  otherwise  specially  required.  Where  the  solicitors 
for  all  the  parties  in  a  suit  reside  in  or  near  the  same  town  or  city, 
the  judges  of  the  circuit  court  may,  by  rule,  abridge  the  time  for  notice 
of  rules,  orders,  or  other  proceedings  not  requiring  personal  service  on 
the  parties,  in  their  discretion. 

5.  All  motions  and  applications  in  the  clerk's  office  for  the  issuing 
of  mesne  process  and  final  process  to  enforce  and  execute  decrees  for 
filing  bills,  answers,  pleas,  demurrers,  and  other  pleadings ;  for  mak- 
ing amendments  to  bills  and  answers ;  for  taking  bills  pro  confesso  ; 
for  filing  exceptions ;  and  for  other  proceedings  in  the  clerk's  office 
which  do  not,  by  the  rules  hereinafter  prescribed,  require  any  allow- 
ance or  order  of  the  court  or  of  any  judge  thereof,  shall  be  deemed 
motions  and  applications  grantable  of  course  by  the  clerk  of  the 
court.  But  the  same  may  be  suspended,  or  altered,  or  rescinded  by 
any  judge  of  the  court,  upon  special  cause  shown. 

6.  All  motions  for  rules  or  orders  and  other  proceedings,  which 
are  not  grantable  of  course  or  without  notice,  shall,  unless  a  different 
time  be  assigned  by  a  judge  of  the  court,  be  made  on  a  rule-day,  and 
entered  in  the  order-book,  and  shall  be  heard  at  the  rule-day  next 
after  that  on  which  the  motion  is  made.  And  if  the  adverse  party, 
or  his  solicitor,  shall  not  then  appear,  or  shall  not  show  good  cause 
against  the  same,  the  motion  may  be  heard  by  any  judge  of  the 
court  ex  parte,  and  granted,  as  if  not  objected  to,  or  refused,  in  his 
discretion. 

Process. 

7.  The  process  of  subpoena  shall  constitute  the  proper  mesne 
process  in  all  suits  in  equity,  in  the  first  instance,  to  require  the 
defendant  to  appear  and  answer  the  exigency  of  the  bill ;  and,  unless 
otherwise  provided  in  these  rules,  or  specially  ordered  by  the  circuit 
court,  a  writ  of  attachment,  and,  if  the  defendant  cannot  be  found,  a 
writ  of  sequestration,  or  a  writ  of  assistance  to  enforce  a  delivery  of 
possession,  as  the  case  may  require,  shall  be  the  proper  process  to 
issue  for  the  purpose  of  compelling  obedience  to  any  interlocutory  or 
final  order  or  decree  of  the  court. 

8.  Final  process  to  execute  any  decree  may,  if  the  decree  be  solely 
for  the  payment  of  money,  be  by  a  writ  of  execution,  in  the  form 
used  in  the  circuit  court  in  suits  at  common  law  in  actions  of  as- 
sumpsit. If  the  decree  be  for  the  performance  of  any  specific  act,  as, 
for  example,  for  the  execution  of  a  conveyance  of  land  or  the  deliver- 


666  APPENDIX. 

ing  up  of  deeds  or  other  documents,  the  decree  shall,  in  all  cases,  pre- 
scribe the  time  within  which  the  act  shall  be  done,  of  which  the 
defendant  shall  be  bound,  without  further  service,  to  take  notice  ; 
and  upon  affidavit  of  the  plaintiff,  filed  in  the  clerk's  office,  that  the 
same  has  not  been  complied  with  within  the  prescribed  time,  the 
clerk  shall  issue  a  writ  of  attachment  against  the  delinquent  party, 
from  which,  if  attached  thereon,  he  shall  not  be  discharged,  unless 
upon  a  full  compliance  with  the  decree  and  the  payment  of  all  costs, 
or  upon  a  special  order  of  the  court,  or  of  a  judge  thereof,  upon 
motion  and  affidavit,  enlarging  the  time  for  the  performance  thereof. 
If  the  delinquent  party  cannot  be  found,  a  writ  of  sequestration  shall 
issue  against  his  estate  upon  the  return  of  non  est  inventus,  to  compel 
obedience  to  the  decree. 

9.  "When  any  decree  or  order  is  for  the  delivery  of  possession,  upon 
proof  made  by  affidavit  of  a  demand  and  refusal  to  obey  the  decree  or 
order,  the  party  prosecuting  the  same  shall  be  entitled  to  a  writ  of 
assistance  from  the  clerk  of  the  court. 

10.  Every  person,  not  being  a  party  in  any  cause,  who  has  obtained 
an  order,  or  in  whose  favor  an  order  shall  have  been  made,  shall  be 
enabled  to  enforce  obedience  to  such  order  by  the  same  process  as  if 
he  were  a  party  to  the  cause  ;  and  every  person,  not  being  a  party  in 
any  cause,  against  whom  obedience  to  any  order  of  the  court  may  be 
enforced,  shall  be  liable  to  the  same  process  for  enforcing  obedience 
to  such  orders  as  if  he  were  a  party  in  the  cause. 

Service  of  Process. 

11.  No  process  of  subpoena  shall  issue  from  the  clerk's  office  in 
any  suit  in  equity  until  the  bill  is  filed  in  the  office. 

12.  Whenever  a  bill  is  filed,  the  clerk  shall  issue  the  process  of 
subpoena  thereon,  as  of  course,  upon  the  application  of  the  plaintiff, 
which  shall  be  returnable  into  the  clerk's  office  the  next  rule-day,  or 
the  next  rule-day  but  one,  at  the  election  of  the  plaintiff,  occurring 
after  twenty  days  from  the  time  of  the  issuing  thereof.  At  the  bot- 
tom of  the  subpoena  shall  be  placed  a  memorandum,  that  the  defend- 
ant is  to  enter  his  appearance  in  the  suit  in  the  clerk's  office  on  or 
before  the  day  at  which  the  writ  is  returnable ;  otherwise,  the  bill 
may  be  taken  pro  confesso.  Where  there  are  more  than  one  defend- 
ant, a  writ  of  subpoena  may,  at  the  election  of  the  plaintiff,  be  sued 
out  separately  for  each  defendant,  except  in  the  case  of  husband  and 
wife  defendants,  or  a  joint  subpoena  against  all  the  defendants. 

13.  The  service  of  all  subpoenas  shall  be  by  a  delivery  of  a  copy 
thereof  by  the  officer  serving  the  same  to  the  defendant  personally, 
or  by  leaving  a  copy  thereof  at  the  dwelling-house  or  usual  place  of 


RULES   OF   PRA.CTTCE    IN   EQUITY.  667 

abode  of  each,  defendant,  with  some  adult  person  who  is  a  member  or 
resident  in  the  family. 

14.  Whenever  any  subpoena  shall  be  returned  not  executed  as  to 
any  defendant,  the  plaintiff  shall  be  entitled  to  another  subpoena, 
toties  quoties,  against  such  defendant,  if  he  shall  require  it,  until  due 
service  is  made. 

15.  The  service  of  all  process,  mesne  and  final,  shall  be  by  the 
marshal  of  the  district  or  his  deputy,  or  by  some  other  person 
specially  appointed  by  the  court  for  that  purpose,  and  not  otherwise. 
In  the  latter  case,  the  person  serving  the  process  shall  make 
affidavit  thereof. 

16.  Upon  the  return  of  the  subpoena  as  served  and  executed  upon 
any  defendant,  the  clerk  shall  enter  the  suit  upon  his  docket  as  pend- 
ing in  the  court,  and  shall  state  the  time  of  the  entry. 

Appearance. 

17.  The  appearance-day  of  the  defendant  shall  be  the  rule-day  to 
which  the  subpoena  is  made  returnable,  provided  he  has  been  served 
with  the  process  twenty  days  before  that  day ;  otherwise  his  appear- 
ance-day shall  be  the  next  rule-day  succeeding  the  rule-day  when  the 
process  is  returnable. 

The  appearance  of  the  defendant,  either  personally  or  by  his  solici- 
tor, shall  be  entered  in  the  order-book  on  the  day  thereof  by  the 

clerk. 

Bills  taken  pro  confesso. 

18.  It  shall  be  the  duty  of  the  defendant,  unless  the  time  shall  be 
otherwise  enlarged,  for  cause  shown,  by  a  judge  of  the  court,  upon 
motion  for  that  purpose,  to  file  his  plea,  demurrer,  or  answer  to  the 
bill,  in  the  clerk's  office,  on  the  rule-day  next  succeeding  that  of 
entering  his  appearance.  In  default  thereof,  the  plaintiff  may,  at  his 
election,  enter  an  order  (as  of  course)  in  the  order-book,  that  the  bill 
be  taken  pro  confesso  ;  and  thereupon  the  cause  shall  be  proceeded  in 
ex  parte,  and  the  matter  of  the  bill  may  be  decreed  by  the  court  at 
any  time  after  the  expiration  of  thirty  days  from  and  after  the  entry 
of  said  order,  if  the  same  can  be  done  without  an  answer,  and  is 
proper  to  be  decreed  ;  or  the  plaintiff,  if  he  requires  any  discovery  or 
answer  to  enable  him  to  obtain  a  proper  decree,  shall  be  entitled  to 
process  of  attachment  against  the  defendant  to  compel  an  answer, 
and  the  defendant  shall  not  when  arrested  upon  such  process,  be 
discharged  therefrom,  unless  upon  filing  his  answer,  or  otherwise 
complying  with  such  order  as  the  court  or  a  judge  thereof  may  direct, 
as  to  pleading  to  or  fully  answering  the  bill,  within  a  period  to  be 
fixed  by  the  court  or  judge,  and  undertaking  to  speed  the  cause. 


668  APPENDIX. 

19.  "When  the  bill  is  taken  pro  confesso  the  court  may  proceed  to 
a  decree  at  any  time  after  the  expiration  of  thirty  days  from  and 
after  the  entry  of  the  order  to  take  the  bill  pro  confesso,  and  such 
decree  rendered  shall  be  deemed  absolute,  unless  the  court  shall,  at 
the  same  term,  set  aside  the  same,  or  enlarge  the  time  for  filing 
the  answer,  upon  cause  shown,  upon  motion  and  affidavit  of  the 
defendant.  And  no  such  motion  shall  be  granted  unless  upon  the 
payment  of  the  cost  of  the  plaintiff  in  the  suit  up  to  that  time,  or 
such  part  thereof  as  the  court  shall  deem  reasonable,  and  unless  the 
defendant  shall  undertake  to  file  his  answer  within  such  time  as  the 
court  shall  direct,  and  submit  to  such  other  terms  as  the  court  shall 
direct,  for  the  purpose  of  speeding  the  cause. 

Frame  of  Bills. 

20.  Every  bill  in  the  introductory  part  thereof,  shall  contain  the 
names,  places  of  abode,  and  citizenship  of  all  the  parties,  plaintiffs 
and  defendants,  by  and  against  whom  the  bill  is  brought.  The  form, 
in  substance,  shall  be  as  follows  :  "  To  the  judges  of  the  circuit  court 

of  the  United  States  for  the  district  of :  A.  B.,  of ,  and  a 

citizen  of  the  State  of ,  brings  this  his  bill  against  C.  D.,  of , 

and  a  citizen  of  the  State  of ,  and  E.  F.,  of ,  and  a  citizen  of 

the  State  of .     And  thereupon  your  orator  complains  and  says 

that,"  &c. 

21.  The  plaintiff,  in  his  bill,  shall  be  at  liberty  to  omit,  at  his  op- 
tion, the  part  which  is  usually  called  the  common  confederacy  clause 
of  the  bill,  averring  a  confederacy  between  the  defendants  to  injure 
or  defraud  the  plaintiff ;  also  what  is  commonly  called  the  charging 
part  of  the  "bill,  setting  forth  the  matters  or  excuses  which  the  de- 
fendant is  supposed  to  intend  to  set  up  by  way  of  defence  to  the  bill ; 
also  what  is  commonly  called  the  jurisdiction  clause  of  the  bill,  that 
the  acts  complained  of  are  contrary  to  equity,  and  that  the  defend- 
ant is  without  any  remedy  at  law  ;  and  the  bill  shall  not  be  demurra- 
ble therefor.  And  the  plaintiff  may,  in  the  narrative  or  stating  part 
of  his  bill,  state  and  avoid,  by  counter-averments,  at  his  option,  any 
matter  or  thing  which  he  supposes  will  be  insisted  upon  by  the  de- 
fendant by  way  of  defence  or  excuse  to  the  case  made  by  the  plaintiff 
for  relief.  The  prayer  of  the  bill  shall  ask  the  special  relief  to  which 
the  plaintiff  supposes  himself  entitled,  and  also  shall  contain  a  prayer 
for  general  relief ;  and  if  an  injunction,  or  a  writ  of  ne  exeat  regno, 
or  any  other  special  order,  pending  the  suit,  is  required,  it  shall  also 
be  specially  asked  for. 

22.   If  any  persons,  other  than  those  named  as  defendants  in  the 
bill,  shall  appear  to  be  necessary  or  proper  parties  thereto,  the  bill 


RULES  OF  PRACTICE  IN  EQUITY.  669 

shall  aver  the  reason  why  they  are  not  made  parties,  by  showing 
them  to  be  without  the  jurisdiction  of  the  court,  or  that  they  cannot 
be  joined  without  ousting  the  jurisdiction  of  the  court  as  to  the  other 
parties.  And  as  to  persons  who  are  without  the  jurisdiction  and 
may  properly  be  made  parties,  the  bill  may  pray  that  process  may 
issue  to  make  them  parties  to  the  bill  if  they  should  come  within  the 
jurisdiction. 

23.  The  prayer  for  process  of  subpoena  in  the  bill  shall  contain  the 
names  of  all  the  defendants  named  in  the  introductory  part  of  the 
bill,  and  if  any  of  them  are  known  to  be  infants  under  age,  or  other- 
wise under  guardianship,  shall  state  the  fact,  so  that  the  court  may 
take  order  thereon,  as  justice  may  require  upon  the  return  of  the 
process.  If  an  injunction,  or  a  writ  of  ne  exeat  regno,  or  any  other 
special  order,  pending  the  suit,  is  asked  for  in  the  prayer  for  relief, 
that  shall  be  sufficient,  without  repeating  the  same  in  the  prayer  for 
process. 

24.  Every  bill  shall  contain  the  signature  of  counsel  annexed  to 
it,  which  shall  be  considered  as  an  affirmation  on  his  part  that,  upon 
the  instructions  given  to  him  and  the  case  laid  before  him,  there  is 
good  ground  for  the  suit,  in  the  mauner  in  which  it  is  framed. 

25.  In  order  to  prevent  unnecessary  costs  and  expenses,  and  to 
promote  brevity,  succinctness,  and  directness  in  the  allegations  of 
bills  and  answers,  the  regular  taxable  costs  for  every  bill  and  answer 
shall  in  no  case  exceed  the  sum  which  is  allowed  in  the  State  court 
of  chancery  in  the  district,  if  any  there  be;  but  if  there  be  none, 
then  it  shall  not  exceed  the  sum  of  three  dollars  for  every  bill  or 
answer. 

Scandal  and  Impertinence  in  Bills. 

26.  Every  bill  shall  be  expressed  in  as  brief  and  succinct  terms  as 
it  reasonably  can  be,  and  shall  contain  no  unnecessary  recitals  of 
deeds,  documents,  contracts,  or  other  instruments,  in  ho?c  verba,  or 
any  other  impertinent  matter,  or  any  scandalous  matter  not  relevant 
to  the  suit.  If  it  does,  it  may,  on  exceptions,  be  referred  to  a  master, 
by  any  judge  of  the  court,  for  impertinence  or  scandal ;  and  if  so 
found  by  him,  the  matter  shall  be  expunged  at  the  expense  of  the 
plaintiff,  and  he  shall  pay  to  the  defendant  all  his  costs  in  the  suit 
up  to  that  time,  unless  the  court  or  a  judge  thereof  shall  otherwise 
order.  If  the  mastor  shall  report  that  the  bill  is  not  scandalous  or 
impertinent,  the  plaintiff  shall  be  entitled  to  all  costs  occasioned  by 
the  reference. 

27.  No  order  shall  be  made  by  any  judge  for  referring  any  bill, 
answer,  or  pleading,  or  other  matter  or  proceeding,  depending  before 
the  court,  for  scandal  or  impertinence,  unless  exceptions  are  taken  in 


670  APPENDIX. 

writing  and  signed  by  counsel,  describing  the  particular  passages 
which  are  considered  to  be  scandalous  or  impertinent ;  nor  unless  the 
exceptions  shall  be  filed  on  or  before  the  next  rule-day  after  the  pro- 
cess on  the  bill  shall  be  returnable,  or  after  the  answer  or  pleading  is 
filed.  And  such  order  when  obtained,  shall  be  considered  as  aban- 
doned, unless  the  party  obtaining  the  order  shall,  without  any  un- 
necessary delay,  procure  the  master  to  examine  and  report  for  the 
same  on  or  before  the  next  succeeding  rule-day,  or  the  master  shall 
certify  that  further  time  is  necessary  for  him  to  complete  the 
examination. 

Amendment  of  Bills. 

28.  The  plaintiff  shall  be  at  liberty,  as  a  matter  of  course,  and 
without  payment  of  costs,  to  amend  his  bill,  in  any  matters  whatso- 
ever, before  any  copy  has  been  taken  out  of  the  clerk's  office,  and  in 
any  small  matters  afterward,  such  as  filling  blanks,  correcting  errors 
of  dates,  misnomer  of  parties,  misdescription  of  premises,  clerical 
errors,  and  generally  in  matters  of  form.  But  if  he  amend  in  a  mate- 
rial point  (as  he  may  do  of  course)  after  a  copy  has  been  so  taken, 
before  any  answer  or  plea  or  demurrer  to  the  bill,  he  shall  pay  to  the 
defendant  the  costs  occasioned  thereby,  and  shall,  without  delay, 
furnish  him  a  fair  copy  thereof,  free  of  expense,  with  suitable  refer- 
ences to  the  places  where  the  same  are  to  be  inserted.  And  if  the 
amendments  are  numerous,  he  shall  furnish,  in  like  manner,  to  the 
defendant,  a  copy  of  the  whole  bill  as  amended ;  and  if  there  be  more 
than  one  defendant,  a  copy  shall  be  furnished  to  each  defendant 
affected  thereby. 

29.  After  an  answer,  or  plea,  or  demurrer  is  put  in,  and  before 
replication,  the  plaintiff  may,  upon  motion  or  petition,  without  notice, 
obtain  an  order  from  any  judge  of  the  court  to  amend  his  bill  on  or 
before  the  next  succeeding  rule-day,  upon  payment  of  costs  or  with- 
out payment  of  costs,  as  the  court  or  a  judge  thereof  may  in  his  dis- 
cretion direct.  But  after  replication  filed,  the  plaintiff  shall  not  be 
permitted  to  withdraw  it  and  to  amend  his  bill,  except  upon  a  special 
order  of  a  judge  of  the .  court,  upon  motion  or  petition,  after  due 
notice  to  the  other  party,  and  upon  proof  by  affidavit  that  the  same  is 
not  made  for  the  purpose  of  vexation  or  delay,  or  that  the  matter  of 
the  proposed  amendment  is  material,  and  could  not  with  reasonable 
diligence  have  been  sooner  introduced  into  the  bill,  and  upon  the 
plaintiff's  submitting  to  such  other  terms  as  may  be  imposed  by  the 
judge  for  speeding  the  cause. 

30.  If  the  plaintiff  so  obtaining  any  order  to  amend  his  bill  after 
answer,  or  plea,  or  demurrer,  or  after  replication,  shall  not  file  his 
amendments  or  amended  bill,  as  the  case  may  require,  in  the  clerk's 


RULES  OF  PRACTICE  IN  EQUITY.  671 

office  on  or  before  the  next  succeeding  rule-day,  he  shall  be  considered 
to  have  abandoned  the  same,  and  the  cause  shall  proceed  as  if  no 
application  for  any  amendment  had  been  made. 

Demurrers  and  Pleas. 

31.  No  demurrer  or  plea  shall  be  allowed  to  be  filed  to  any  bill, 
unless  upon  a  certificate  of  counsel,  that  in  his  opinion  it  is  well 
founded  in  point  of  law,  and  supported  by  the  affidavit  of  the  defend- 
ant ;  that  it  is  not  interposed  for  delay ;  and,  if  a  plea,  that  it  is  true 
in  point  of  fact. 

32.  The  defendant  may  at  any  time  before  the  bill  is  taken  for 
confessed,  or  afterward  with  the  leave  of  the  court,  demur  or  plead 
to  the  whole  bill,  or  to  part  of  it,  and  he  may  demur  to  part,  plead  to 
part,  and  answer  as  to  the  residue  ;  but  in  every  case  in  which  the  bill 
specially  charges  fraud  or  combination,  a  plea  to  such  part  must  be 
accompanied  with  an  answer  fortifying  the  plea  and  explicitly  deny- 
ing the  fraud  and  combination,  and  the  facts  on  which  the  charge  is 
founded. 

33.  The  plaintiff  may  set  down  the  demurrer  or  plea  to  be  argued, 
or  he  may  take  issue  on  the  plea.  If,  upon  an  issue,  the  facts  stated 
in  the  plea  be  determined  for  the  defendant,  they  shall  avail  him  as 
far  as  in  law  and  equity  they  ought  to  avail  him. 

34.  If,  upon  the  hearing,  any  demurrer  or  plea  is  overruled,  the 
plaintiff  shall  be  entitled  to  his  costs  in  the  cause  up  to  that  period, 
unless  the  court  shall  be  satisfied  that  the  defendant  has  good  ground, 
in  point  of  law  or  fact,  to  interpose  the  same,  and  it  was  not  inter- 
posed vexatiously  or  for  delay.  And,  upon  the  overruling  of  any 
plea  or  demurrer,  the  defendant  shall  be  assigned  to  answer  the  bill, 
or  so  much  thereof  as  is  covered  by  the  plea  or  demurrer,  the  next 
succeeding  rule-day,  or  at  such  other  period  as,  consistently  with  jus- 
tice and  the  rights  of  the  defendant,  the  same  can,  in  the  judgment  of 
the  court,  be  reasonably  done  ;  in  default  whereof,  the  bill  shall  be 
taken  against  him  pro  confesso,  and  the  matter  thereof  proceeded  in 
and  decreed  accordingly. 

35.  If,  upon  the  hearing,  any  demurrer  or  plea  shall  be  allowed, 
the  defendant  shall  be  entitled  to  his  costs.  But  the  court  may,  in 
its  discretion,  upon  motion  of  the  plaintiff,  allow  him  to  amend  his 
bill,  upon  such  terms  as  it  shall  deem  reasonable. 

36.  No  demurrer  or  plea  shall  be  held  bad  and  overruled  upon 
argument,  only  because  such  demurrer  or  plea  shall  not  cover  so  much 
of  the  bill  as  it  might  by  law  have  extended  to. 

37.  No  demurrer  or  plea  shall  be  held  bad  and  overruled  upon 
argument,  only  because  the  answer  of  the  defendant  may  extend  to 


672  APPENDIX. 

some  part  of  the  same  matter  as  may  be  covered  by  such  demurrer  or 
plea. 

38.  If  the  plaintiff  shall  not  reply  to  any  plea,  or  set  down  any 
plea  or  demurrer  for  argument  on  the  rule-day  when  the  same  is  filed, 
or  on  the  next  succeeding  rule-day,  he  shall  be  deemed  to  admit  the 
truth  and  sufficiency  thereof,  and  his  bill  shall  be  dismissed  as  of 
course,  unless  a  judge  of  the  court  shall  allow  him  further  time  for 
that  purpose. 

Answers  and  Discovery. 

39.  The  rule,  that  if  a  defendant  submits  to  answer  he  shall 
answer  fully  to  all  the  matters  of  the  bill,  shall  no  longer  apply  in 
cases  where  he  might  by  plea  protect  himself  from  such  answer  and 
discovery.  And  the  defendant  shall  be  entitled  in  all  cases  by 
answer  to  insist  upon  all  matters  of  defence  (not  being  matters  of 
abatement,  or  to  the  character  of  the  parties,  or  matters  of  form)  in 
bar  of  or  to  the  merits  of  the  bill,  of  which  he  may  be  entitled  to 
avail  himself  by  a  plea  in  bar  ;  and  in  such  answer  he  shall  not  b.e 
compellable  to  answer  any  other  matters  than  he  would  be  compel- 
lable to  answer  and  discover  upon  filing  a  plea  in  bar  and  an  answer 
in  support  of  such  plea,  touching  the  matters  set  forth  in  the  bill, 
to  avoid  or  repel  the  bar  or  defence.  Thus,  for  example,  a  bona  fide 
purchaser,  for  a  valuable  consideration  without  notice,  may  set  up 
that  defence  by  way  of  answer  instead  of  plea,  and  shall  be  en- 
titled to  the  same  protection,  and  shall  not  be  compellable  to  make 
any  further  answer  or  discovery  of  his  title  than  he  would  be  in  any 
answer  in  support  of  such  plea. 

40.  A  defendant  shall  not  be  bound  to  answer  any  statement  or 
charge  in  the  bill,  unless  specially  and  particularly  interrogated 
thereto ;  and  a  defendant  shall  not  be  bound  to  answer  any  interroga- 
tory in  the  bill,  except  those  interrogatories  which  such  defendant  is 
required  to  answer ;  and  where  a  defendant  shall  answer  any  state- 
ment or  charge  in  the  bill  to  which  he  is  not  interrogated,  only  by 
stating  his  ignorance  of  the  matter  so  stated  or  charged,  such  answer 
shall  be  deemed  impertinent. 

December  Term,  1850. 

Ordered,  That  the  fortieth  rule,  heretofore  adopted  and  promul- 
gated by  this  court  as  one  of  the  rules  of  practice  in  suits  in  equity  in 
the  circuit  courts,  be,  and  the  same  is  hereby,  repealed  and  annulled. 
And  it  shall  not  hereafter  be  necessary  to  interrogate  a  defendant 
specially  and  particularly  upon  any  statement  in  the  bill,  unless  the 
complainant  desires  to  do  so,  to  obtain  a  discovery. 


RULES   OF   PRACTICE   IN   EQUITY.  673 

41.  The  interrogatories  contained  in  the  interrogating  part  of  the 
bill  shall  be  divided  as  conveniently  as  may  be  from  each  other,  and 
numbered  consecutively  1,  2,  3,  &c. ;  and  the  interrogatories  which 
each  defendant  is  required  to  answer  shall  be  specified  in  a  note  at 
the  foot  of  the  bill,  in  the  form  or  to  the  effect  following,  that  is  to 
say.  -The  defendant  (A.  B.)  is  required  to  answer  the  interrogatories 
numbered  respectively  1,  2,  3,"  &c. ;  and  the  office  copy  of  the  bill 
taken  by  each  defendant  shall  not  contain  any  interrogatories  except 
those  which  such  defendant  is  so  required  to  answer,  unless  such 
defendant  shall  require  to  be  furnished  with  a  copy  of  the  whole 
bill. 

December  Term,  1871. 

Amendment  to  41st  Equity  Rule. 

If  the  complainant,  in  his  bill,  shall  waive  an  answer  under  oath, 
or  shall  only  require  an  answer  under  oath  with  regard  to  certain 
specified  interrogatories,  the  answer  of  the  defendant,  though  under 
oath,  except  such  part  thereof  as  shall  be  directly  responsive  to  such 
interrogatories,  shall  not  be  evidence  in  his  favor,  unless  the  cause  be 
set  down  for  hearing  on  bill  and  answer  only  ;  but  may  nevertheless 
be  used  as  an  affidavit,  with  the  same  effect  as  heretofore,  on  a  motion 
to  grant  or  dissolve  an  injunction,  or  on  any  other  incidental  motion 
in  the  cause;  but  this  shall  not  prevent  a  defendant  from  becoming 
a  witness  in  his  own  behalf  under  section  3  of  the  act  of  Congress  of 
July  2,  1864. 

42.  The  note  at  the  foot  of  the  bill,  specifying  the  interrogatories 
which  each  defendant  is  required  to  answer,  shall  be  considered  and 
treated  as  part  of  the  bill,  and  the  addition  of  any  such  note  to  the 
bill,  or  any  alteration  in  or  addition  to  such  note,  after  the  bill  is 
filed,  shall  be  considered  and  treated  as  an  amendment  of  the  bill. 

43.  Instead  of  the  words  of  the  bill  now  in  use,  preceding  the 
interrogating  part  thereof,  and  beginning  with  the  words  "  To  the 
end  therefore,"  there  shall  hereafter  be  used  words  in  the  form  or  to 
the  effect  following  :  "  To  the  end,  therefore,  that  the  said  defendants 
may,  if  they  can,  show  why  your  orator  should  not  have  the  relief 
hereby  prayed,  and  may,  upon  their  several  and  respective  corporal 
oaths,  and  according  to  the  best  and  utmost  of  their  s  sveral  and  re- 
spective knowledge,  remembrance,  information,  and  belief,  full,  true, 
direct,  and  perfect  answers  make  to  such  of  the  several  interroga- 
tories hereinafter  numbered  and  set  forth,  as  by  the  note  hereunder 
written  they  are  respectively  required  to  answer  ;  that  is  to  say  — 

"  1.  Whether,  &c. 
"2.  Whether,  &c." 

43 


C74  APPENDIX. 

44.  A  defendant  shall  be  at  liberty,  by  answer,  to  decline  answer- 
ing any  interrogatory,  or  part  of  an  interrogatory,  from  answering 
which  he  might  have  protected  himself  by  demurrer ;  and  he  shall  be 
at  liberty  so  to  decline,  notwithstanding  he  shall  answer  other  parts 
of  the  bill  from  which  he  might  have  protected  himself  by  demurrer. 

45.  No  special  replication  to  any  answer  shall  be  filed.  But  if  any 
matter  alleged  in  the  answer  shall  make  it  necessary  for  the  plaintiff 
to  amend  his  bill,  he  may  have  leave  to  amend  the  same  with  or  with- 
out the  payment  of  costs,  as  the  court,  or  a  judge  thereof,  may  in  his 
discretion  direct. 

4C.  In  every  case  where  an  amendment  shall  be  made  after  answer 
filed,  the  defendant  shall  put  in  a  new  or  supplemental  answer  on  or 
before  the  next  succeeding  rule-day  after  that  on  which  the  amend- 
ment or  amended  bill  is  filed,  unless  the  time  is  enlarged  or  otherwise 
ordered  by  a  judge  of  the  court ;  and  upon  his  default,  the  like  pro- 
ceedings may  be  had  as  in  cases  of  an  omission  to  put  in  an  answer. 

Parties  to  Bills. 

47.  In  all  cases  where  it  shall  appear  to  the  court  that  persons  who 
might  otherwise  be  deemed  necessary  or  proper  parties  to  the  suit, 
cannot  be  made  parties  by  reason  of  their  being  out  of  the  jurisdic- 
tion of  the  court,  or  incapable  otherwise  of  being  made  parties,  or 
because  their  joinder  would  ousb  the  jurisdiction  of  the  court  as  to 
the  parties  before  the  court,  the  court  may  in  their  discretion  proceed 
in  the  cause  without  making  such  persons  parties  ;  and  in  such  cases 
the  decree  shall  be  without  prejudice  to  the  rights  of  the  absent 
parties. 

48.  Where  the  parties  on  either  side  are  very  numerous,  and  can- 
not, without  manifest  inconvenience  and  oppressive  delays  in  the 
suit,  be  all  brought  before  it,  the  court  in  its  discretion  may  dispense 
with  making  all  of  them  parties,  and  may  proceed  in  the  suit,  having 
sufficient  parties  before  it  to  represent  all  the  adverse  interests  of  the 
plaintiffs  and  the  defendants  in  the  suit  properly  before  it.  But,  in 
such  cases,  the  decree  shall  be  without  prejudice  to  the  rights  and 
claims  of  all  the  absent  parties. 

49.  In  all  suits  concerning  real  estate  which  is  vested  in  trustees 
by  devise,  and  such  trustees  are  competent  to  sell  and  give  discharges 
for  the  proceeds  of  the  sale,  and  for  the  rents  and  profits  of  the 
estate,  such  trustees  shall  represent  the  persons  beneficially  inter- 
ested in  the  estate,  or  the  proceeds,  or  the  rents  and  profits,  in  the 
same  manner  and  to  the  same  extent  as  the  executors  or  administra- 
tors in  suits  concerning  personal  estate  represent  the  persons  bene- 
ficially interested  in  such  personal  estate ;  and  in  such  cases  it  shall 


EULES   OF   PRACTICE    IN   EQUITY.  675 

not  be  necessary  to  make  the  persons  beneficially  interested  in  such 
real  estate,  or  rents  and  profits,  parties  to  the  suit ;  but  the  court 
may,  upon  consideration  of  the  matter  on  the  hearing,  if  it  shall  so 
think  fit,  order  such  persons  to  be  made  parties. 

50.  In  suits  to  execute  the  trusts  of  a  will,  it  shall  not  be  necessary 
to  make  the  heir  at  law  a  party  ;  but  the  plaintiffs  shall  be  at  liberty 
to  make  the  heir  at  law  a  party  where  he  desires  to  have  the  will 
established  against  him. 

51.  In  all  cases  in  which  the  plaintiff  has  a  joint  and  several 
demand  against  several  persons,  either  as  principals  or  sureties,  it 
shall  not  be  necessary  to  bring  before  the  court  as  parties  to  a  suit 
concerning  such  demand,  all  the  persons  liable  thereto  ;  but  the  plain- 
tiff may  proceed  against  one  or  more  of  the  persons  severally  liable. 

52.  Where  the  defendant  shall,  by  his  answer,  suggest  that  the 
bill  is  defective  for  want  of  parties,  the  plaintiff  shall  be  at  liberty, 
within  fourteen  days  after  answer  filed,  to  set  down  the  cause  for 
argument  upon  that  objection  only ;  and  the  purpose  for  which  the 
same  is  so  set  down  shall  be  notified  by  an  entry,  to  be  made  in  the 
clerk's  order-book,  in  the  form  or  to  the  effect  following,  (that  is  to 
say  :  )  "  Set  down  upon  the  defendant's  objection  for  want  of  par- 
ties." And  where  the  plaintiff  shall  not  so  set  down  his  cause,  but 
shall  proceed  therewith  to  a  hearing,  notwithstanding  an  objection 
for  want  of  parties  taken  by  the  answer,  he  shall  not,  at  the  hearing 
of  the  cause,  if  the  defendant's  objection  shall  then  be  allowed,  be 
entitled  as  of  course  to  an  order  for  liberty  to  amend  his  bill  by  add- 
ing parties.  But  the  court,  if  it  thinks  fit,  shall  be  at  liberty  to  dis- 
miss the  bill. 

53.  If  a  defendant  shall,  at  the  hearing  of  a  cause,  object  that 
a  suit  is  defective  for  want  of  parties  not  having  by  plea  or  answer 
taken  the  objection,  and  therein  specified  by  name  or  description  of 
parties  to  whom  the  objection  applies,  the  court  (if  it  shall  think  fit) 
shall  be  at  liberty  to  make  a  decree  saving  the  rights  of  the  absent 
parties. 

54.  Where  no  account,  payment,  conveyance,  or  other  direct  relief 
is  sought  against  a  party  to  a  suit,  not  being  an  infant,  the  party, 
upon  service  of  the  subpoena  upon  him,  need  not  appear  and  answer 
the  bill,  unless  the  plaintiff  specially  requires  him  so  to  do  by  the 
prayer  of  his  bill ;  but  he  may  appear  and  answer  at  his  option  ;  and 
if  he  does  not  appear  and  answer  he  shall  be  bound  by  all  the  pro- 
ceedings in  the  cause.  If  the  plaintiff  shall  require  him  to  appear 
and  answer  he  shall  be  entitled  to  the  costs  of  all  the  proceedings 
against  him,  unless  the  court  shall  otherwise  direct. 


676  APPENDIX. 

Injunctions. 

55.  Whenever  an  injunction  is  asked  for  by  the  bill  to  stay  pro- 
ceedings at  law,  if  the  defendant  do  not  enter  his  appearance,  and 
plead,  demur,  or  answer  to  the  same  within  the  time  prescribed  there- 
for by  these  rules,  the  plaintiff  shall  be  entitled  as  of  course,  upon 
motion,  without  notice,  to  such  injunction.  But  special  injunctions 
shall  be  grantable  only  upon  due  notice  to  the  other  party  by  the 
court  in  term,  or  by  a  judge  thereof  in  vacation,  after  a  hearing, 
which  may  be  ex  parte,  if  the  adverse  party  does  not  appear  at  the 
time  and  place  ordered.  In  every  case  where  an  injunction  —  either 
the  common  injunction  or  a  special  injunction  —  is  awarded  in  vaca- 
tion, it  shall,  unless  previously  dissolved  by  the  judge  granting  the 
same,  continue  until  the  next  term  of  the  court,  or  until  it  is  dissolved 
by  some  other  order  of  the  court. 

Bills  of  Revivor  and  Supplemental  Bills. 

56.  "Whenever  a  suit  in  equity  shall  become  abated  by  the  death  of 
either  party,  or  by  any  other  event,  the  same  may  be  revived  by  a 
bill  of  revivor,  or  a  bill  in  the  nature  of  a  bill  of  revivor,  as  the  cir- 
cumstances of  the  case  may  require,  filed  by  the  proper  parties, 
entitled  to  revive  the  same,  which  bill  may  be  filed  in  the  clerk's 
office  at  any  time ;  and,  upon  suggestion  of  the  facts,  the  proper 
process  of  subpoena  shall,  as  of  course,  be  issued  by  the  clerk,  requir- 
ing the  proper  representatives  of  the  other  party  to  appear  and  show 
cause,  if  any  they  have,  why  the  cause  should  not  be  revived.  And 
if  no  cause  shall  be  shown  at  the  next  rule-day  which  shall  occur 
after  fourteen  days  from  the  time  of  the  service  of  the  same  process, 
the  suit  shall  stand  revived,  as  of  course. 

57.  Whenever  any  suit  in  equity  shall  become  defective  from  any 
event  happening  after  the  filing  of  the  bill  (as,  for  example,  by 
change  of  interest  in  the  parties),  or  for  any  other  reason  a  supple- 
mental bill,  or  a  bill'  in  the  nature  of  a  supplemental  bill,  may  be 
necessary  to  be  filed  in  the  cause,  leave  to  file  the  same  may  be 
granted  by  any  judge  of  the  court  on  any  rule-day,  upon  proper  cause 
shown,  and  due  notice  to  the  other  party.  And  if  leave  is  granted  to 
file  such  supplemental  bill,  the  defendant  shall  demur,  plead,  or 
answer  thereto,  on  the  next  succeeding  rule-day  after  the  supplemen- 
tal bill  is  filed  in  the  clerk's  office,  unless  some  other  time  shall  be 
assigned  by  a  judge  of  the  court. 

58.  It  shall  not  be  necessary  in  any  bill  of  revivor  or  supplemental 
bill  to  set  forth  any  of  the  statements  in  the  original  suit,  unless  the 
special  circumstances  of  the  case  may  require  it. 


RULES    OF   PRACTICE    IN    EQUITY.  677 

Verification  of  Answers. 
[As  amended  in  October  Term  1888,  129  U.  S.  701.] 

59.  Every  defendant  may  swear  to  his  answer  before  any  justice  or 

judge  of  any  court  of  the   United  States,  or  before  any  commissioner 

appointed  by  any  circuit  court  to  take  testimony  or  depositions,  or 

before  any  master  in  chancery   appointed  by  any  circuit  court,   or 

before  any  judge  of  any  court  of  a  State  or  Territory,  or  before  any 

notary  public. 

Amendment  of  Answers. 

60.  After  an  answer  is  put  in,  it  may  be  amended,  as  of  course,  in 
any  matter  of  form,  or  by  filling  up  a  blank,  or  correcting  a  date,  or 
reference  to  a  document,  or  other  small  matter,  and  be  resworn,  at  any 
time  before  a  replication  is  put  in,  or  the  cause  is  set  down  for  a 
hearing  upon  bill  and  answer.  But  after  replication,  or  such  setting 
down  for  a  hearing,  it  shall  not  be  amended  in  any  material  matters, 
as  by  adding  new  facts  or  defenses,  or  qualifying  or  altering  the  origi- 
nal statements,  except  by  special  leave  of  the  court,  or  of  a  judge 
thereof,  upon  motion  and  cause  shown,  after  due  notice  to  the  adverse 
party,  supported,  if  required,  by  affidavit;  and  in  every  case  where 
leave  is  so  granted,  the  court  or  the  judge  granting  the  same  may,  in 
his  discretion,  require  that  the  same  be  separately  engrossed,  and 
added  as  a  distinct  amendment  to  the  original  answer,  so  as  to  be 
distinguishable  therefrom. 

Exceptions  to  Answers. 

61.  After  an  answer  is  filed  on  any  rule-day,  the  plaintiff  shall  be 
allowed  until  the  next  succeeding  rule-day  to  file  in  the  clerk's  office 
exceptions  thereto  for  insufficiency,  and  no  longer,  unless  a  longer  time 
shall  be  allowed  for  the  purpose,  upon  cause  shown  to  the  court,  or  a 
judge  thereof ;  and,  if  no  exception  shall  be  filed  thereto  within  that 
period,  the  answer  shall  be  deemed  and  taken  to  be  sufficient. 

62.  When  the  same  solicitor  is  employed  for  two  or  more  defend- 
ants, and  separate  answers  shall  be  filed,  or  other  proceedings  had,  by 
two  or  more  of  the  defendants  separately,  costs  shall  not  be  allowed 
for  such  separate  answers,  or  other  proceedings,  unless  a  master,  upon 
reference  to  him,  shall  certify  that  such  separate  answers  and  other 
proceedings  were  necessary  or  proper,  and  ought  not  to  have  been 
joined  together. 

63.  Where  exceptions  shall  be  filed  to  the  answer  for  insufficiency, 
within  the  period  prescribed  by  these  rules,  if  the  defendant  shall  not 
submit  to  the  same  and  file  an  amended  answer  on  the  next  succeed- 
ing rule-day,  the  plaintiff  shall  forthwith  set  them  down  for  a  hearing 


G78  APPENDIX. 

on  the  next  succeeding  rule-day  thereafter,  before  a  judge  of  the 
court,  and  shall  enter,  as  of  course,  in  the  order-book,  an  order  for 
that  purpose  ;  and  if  he  shall  not  so  set  down  the  same  for  a  hearing, 
the  exceptions  shall  be  deemed  abandoned,  and  the  answer  shall  be 
deemed  sufficient ;  provided,  however,  that  the  court,  or  any  judge 
thereof,  may,  for  good  cause  shown,  enlarge  the  time  for  filing  ex- 
ceptions, or  for  answering  the  same,  in  his  discretion,  upon  such  terms 
as  he  may  deem  reasonable. 

64.  If,  at  the  hearing,  the  exceptions  shall  be  allowed,  the  defend- 
ant shall  be  bound  to  put  in  a  full  and  complete  answer  thereto  on 
the  next  succeeding  rule-day;  otherwise  the  plaintiff  shall,  as  of 
course,  be  entitled  to  take  the  bill,  so  far  as  the  matter  of  such  excep- 
tions is  concerned,  as  confessed,  or,  at  his  election,  he  may  have  a 
writ  of  attachment  to  compel  the  defendant  to  make  a  better  answer 
to  the  matter  of  the  exceptions ;  and  the  defendant,  when  he  is  in 
custody  upon  such  writ,  shall  not  be  discharged  therefrom  but  by  an 
order  of  the  court,  or  of  a  judge  thereof,  upon  his  putting  in  such 
answer,  and  complying  with  such  other  terms  as  the  court  or  judge 
may  direct. 

65.  If,  upon  argument,  the  plaintiff's  exceptions  to  the  answer  shall 
be  overruled,  or  the  answer  shall  be  adjudged  insufficient,  the  prevail- 
ing party  shall  be  entitled  to  all  the  costs  occasioned  thereby,  unless 
otherwise  directed  by  the  court,  or  the  judge  thereof,  at  the  hearing 
upon  the  exceptions. 

Replication  and  Issue. 

66.  Whenever  the  answer  of  the  defendant  shall  not  be  excepted  to, 
or  shall  be  adjudged  or  deemed  sufficient,  the  plaintiff  shall  file  the 
general  replication  thereto  on  or  before  the  next  succeeding  rule-day 
thereafter  ;  and  in  all  cases  where  the  general  replication  is  filed,  the 
cause  shall  be  deemed,  to  all  intents  and  purposes,  at  issue,  without 
any  rejoinder  or  other  pleading  on  either  side.  If  the  plaintiff  shall 
omit  or  refuse  to  file  such  replication  within  the  prescribed  period,  the 
defendant  shall  be  entitled  to  an  order,  as  of  course,  for  a  dismissal 
of  the  suit ;  and  the  suit  shall  thereupon  stand  dismissed,  unless  the 
court,  or  a  judge  thereof,  shall,  upon  motion,  for  cause  shown, 
allow  a  replication  to  be  filed  nunc  pro  tunc,  the  plaintiff  sub- 
mitting to  speed  the  cause,  and  to  such  other  terms  as  may  be 
directed. 

Testimony  and  Depositions. 

67.  After  the  cause  is  at  issue,  commissions  to  take  testimony  may 
be  taken  out  in  vacation  as  well  as  in  term,  jointly  by  both  parties, 
or  severally  by  either  party,  upon  interrogatories  filed  by  the  party 


RULES  OF  PRACTICE  IN  EQUITY.  679 

taking  out  the  same  in  the  clerk's  office,  ten  days'  notice  thereof  being 
given  to  the  adverse  party  to  file  cross-interrogatories  before  the 
issuing  of  the  commission ;  and  if  no  cross-interrogatories  are  filed  at 
the  expiration  of  the  time,  the  commission  may  issue  ex  parte.  In  all 
cases,  the  commissioner  or  commissioners  shall  be  named  by  the 
court,  or  by  a  judge  thereof.  If  the  parties  shall  so  agree,  the  testi- 
mony may  be  taken  upon  oral  interrogatories  by  the  parties  or  their 
agents,  without  filing  any  written  interrogatories. 

December  Teem,  1854. 

Ordered,  That  the  sixty-seventh  rule  governing  equity  practice  be 
so  amended  as  to  allow  the  presiding  judge  of  any  court  exercising 
jurisdiction,  either  in  term  time  or  in  vacation,  to  vest  in  the  clerk  of 
said  court  general  power  to  name  commissioners  to  take  testimony  in 
like  manner  that  the  court  or  judge  thereof  can  now  do  by  the  said 
sixty -seventh  rule. 

December  Term,  1861. 

Ordered,  That  the  last  paragraph  in  the  sixty-seventh  rule  in  equity 
be  repealed,  and  the  rule  be  amended  as  follows  :  Either  party  may 
give  notice  to  the  other  that  he  desires  the  evidence  to  be  adduced  in 
the  cause  to  be  taken  orally,  and  thereupon  all  the  witnesses  to  be 
examined  shall  be  examined  before  one  of  the  examiners  of  the  court, 
or  before  an  examiner  to  be  specially  appointed  by  the  court,  the 
examiner  to  be  furnished  with  a  copy  of  the  bill  and  answer,  if  any  ; 
and  such  examination  shall  take  place  in  the  presence  of  the  parties 
or  their  agents,  by  their  counsel  or  solicitors,  and  the  witnesses  shall 
be  subject  to  cross-examination  and  re-examination,  and  which  shall 
be  conducted  as  near  as  may  be  in  the  mode  now  used  in  common-law 
courts.  The  depositions  taken  upon  such  oral  examinations  shall  be 
taken  down  in  writing  by  the  examiner  in  the  form  of  narrative,  un- 
less he  determines  the  examination  shall  be  by  question  and  answer  in 
special  instances  ;  and,  when  completed,  shall  be  read  over  to  the  wit- 
ness and  signed  by  him  in  the  presence  of  the  parties  or  counsel,  or 
such  of  them  as  may  attend ;  provided,  if  the  witness  shall  refuse  to 
sign  the  said  deposition,  then  the  examiner  shall  sign  the  same ;  and 
the  examiner  may,  upon  all  examinations,  state  any  special  matters 
to  the  court  as  he  shall  think  fit ;  and  any  question  or  questions  which 
may  be  objected  to  shall  be  noted  by  the  examiner  upon  the  deposi- 
tion, but  he  shall  not  have  power  to  decide  on  the  competency,  mate- 
riality, or  relevancy  of  the  questions  ;  and  the  court  shall  have  power 


GSO 


APPENDIX. 


to  deal  with  the  costs  of  incompetent,  immaterial,  or  irrelevant  depo- 
sitions, or  parts  of  them,  as  may  be  just. 

In  case  of  refusal  of  witnesses  to  attend,  to  be  sworn,  or  to  answer 
any  question  put  by  the  examiner,  or  by  counsel  or  solicitor,  the  same 
practice  shall  be  adopted  as  is  now  practised  with  respect  to  witnesses 
to  be  produced  on  examination  before  an  examiner  of  said  court  on 
written  interrogatories. 

^Notice  shall  be  given  by  the  respective  counsel  or  solicitors,  to  the 
opposite  counsel  or  solicitors,  or  parties,  of  the  time  and  place  of  the 
examination,  for  such  reasonable  time  as  the  examiner  may  fix  by 
order  in  each  cause. 

When  the  examination  of  witnesses  before  the  examiner  is  con- 
cluded, the  original  deposition,  authenticated  by  the  signature  of  the 
examiner,  shall  be  transmitted  by  him  to  the  clerk  of  the  court,  to  be 
there  filed  of  record,  in  the  same  mode  as  prescribed  in  the  thirtieth 
section  of  act  of  Congress,  September  24,  1789. 

Testimony  may  be  taken  on  commission  in  the  usual  way,  by  written 
interrogatories  and  cross-interrogatories,  on  motion  to  the  court  in 
term  time,  or  to  a  judge  in  vacation,  for  special  reasons  satisfactory 
to  the  court  or  judge. 


December  Term,  1869. 

Amendment  to  67th  Rule. 
Where  the  evidence  to  be  adduced  in  a  cause  is  to  be  taken  orally, 
as  provided  in  the  order  passed  at  the  December  term,  1861,  amending 
the  67th  General  Rule,  the  court  may,  on  motion  of  either  party,  as- 
sign a  time  within  which  the  complainant  shall  take  his  evidence  in 
support  of  the  bill,  and  a  time  thereafter  within  which  the  defendant 
shall  take  his  evidence  in  defense,  and  a  time  thereafter  within  which 
the  complainant  shall  take  his  evidence  in  reply  ;  and  no  further  evi- 
dence shall  be  taken  in  the  cause,  unless  by  agreement  of  the  parties, 
or  by  leave  of  court  first  obtained,  on  motion,  for  cause  shown. 

68.  Testimony  may  also  be  taken  in  the  cause,  after  it  is  at  issue, 
by  deposition,  according  to  the  act  of  Congress.  But  in  such  case, 
if  no  notice  is  given  to  the  adverse  party  of  the  time  and  place  of 
taking  the  deposition,  he  shall,  upon  motion  and  affidavit  of  the  fact, 
be  entitled  to  a  cross-examination  of  the  witness,  either  under  a  com- 
mission or  by  a  new  deposition  taken  under  the  acts  of  Congress,  if  a 
court  or  a  judge  thereof  shall,  under  all  the  circumstances,  deem  it 
reasonable. 

69.  Three  months,  and  no  more,  shall  be  allowed  for  the  taking  of 
testimony  after  the  cause  is  at  issue,  unless  the  court,  or  a  judge 


RULES  OF  PRACTICE  IX  EQUITY.  681 

thereof,  shall,  upon  special  cause  shown  by  either  party,  enlarge  the 
time ;  and  no  testimony  taken  after  such  period  shall  be  allowed  to 
be  read  in  evidence  at  the  hearing.  Immediately  upon  the  return  of 
the  commissions  and  depositions  containing  the  testimony  into  the 
clerk's  office,  publication  thereof  may  be  ordered  in  the  clerk's  office, 
by  any  judge  of  the  court,  upon  due  notice  to  the  parties,  or  it  may 
be  enlarged,  as  he  may  deem  reasonable  under  all  the  circumstances ; 
but,  by  consent  of  the  parties,  publication  of  the  testimony  may  at 
any  time  pass  into  the  clerk's  office,  such  consent  being  in  writing, 
and  a  copy  thereof  entered  in  the  order-books,  or  indorsed  upon  the 
deposition  or  testimony. 

70.  After  any  bill  filed  and  before  the  defendant  hath  answered 
the  same,  upon  affidavit  made  that  any  of  the  plaintiff's  witnesses  are 
aged  and  infirm,  or  going  out  of  the  country,  or  that  any  one  of  them 
is  a  single  witness  to  a  material  fact,  the  clerk  of  the  court  shall,  as 
of  course,  upon  the  application  of  the  plaintiff,  issue  a  commission  to 
such  commissioner  or  commissioners  as  a  judge  of  the  court  may 
direct,  to  take  the  examination  of  such  witness  or  witnesses  de  bene 
esse,  upon  giving  due  notice  to  the  adverse  party  of  the  time  and  place 
of  taking  his  testimony. 

71.  The  last  interrogatory  in  the  written  interrogatories  to  take 
testimony  now  commonly  in  use  shall  in  the  future  be  altered,  and 
stated  in  substance  thus :  "  Do  you  know,  or  can  you  set  forth,  any 
other  matter  or  thing  which  may  be  a  benefit  or  advantage  to  the 
parties  at  issue  in  this  cause,  or  either  of  them,  or  that  may  be  mate- 
rial to  the  subject  of  this  your  examination,  or  the  matters  in  question 
in  this  cause?  If  yea,  set  forth  the  same  fully  and  at  large  in  your 
answer." 

Cross-Bills. 

72.  Where  a  defendant  in  equity  files  a  cross-bill  for  discovery 
only  against  the  plaintiff  in  the  original  bill,  the  defendant  to  the 
original  bill  shall  first  answer  thereto  before  the  original  plaintiff 
shall  be  compellable  to  answer  the  cross-bill.  The  answer  of  the 
original  plaintiff  to  such  cross-bill  may  be  read  and  used  by  the  party 
filing  the  cross-bill  at  the  hearing,  in  the  same  manner  and  under  the 
same  restrictions  as  the  answer  praying  relief  may  now  be  read  and 
used. 

Reference  to  and  Proceedings  before  Masters. 

73.  Every  decree  for  an  account  of  the  personal  estate  of  a  testator 
or  intestate  shall  contain  a  direction  to  the  master  to  whom  it  is 
referred  to  take  the  same  to  inquire  and  state  to  the  court  what  parts, 
if  any,  of  such  personal  estate  are  outstanding  or  undisposed  of, 
unless  the  court  shall  otherwise  direct. 


G82  APPENDIX. 

74.  Whenever  any  reference  of  any  matter  is  made  to  a  master  to 
examine  and  report  thereon,  the  party  at  whose  instance  or  for  whose 
benefit  the  reference  is  made  shall  cause  the  same  to  be  presented  to 
the  master  for  a  hearing  on  or  before  the  next  rule-day  succeeding 
the  time  when  the  reference  was  made  ;  if  he  shall  omit  to  do  so,  the 
adverse  party  shall  be  at  liberty  forthwith  to  cause  proceedings  to  be 
had  before  the  master,  at  the  costs  of  the  party  procuring  the 
reference. 

75.  Upon  every  such  reference,  it  shall  be  the  duty  of  the  master, 
as  soon  as  he  reasonably  can  after  the  same  is  brought  before  him,  to 
assign  a  time  and  place  for  proceedings  in  the  same,  and  to  give  due 
notice  thereof  to  each  of  the  parties,  or  their  solicitors ;  and  if  either 
party  shall  fail  to  appear  at  the  time  and  place  appointed,  the  master 
shall  be  at  liberty  to  proceed  ex  parte,  or,  in  his  discretion,  to  adjourn 
the  examination  and  proceedings  to  a  future  day,  giving  notice  to  the 
absent  party  or  his  solicitor  of  such  adjournment ;  and  it  shall  be  the 
duty  of  the  master  to  proceed  with  all  reasonable  diligence  in  every 
such  reference,  and  with  the  least  practicable  delay,  and  either  party 
shall  be  at  liberty  to  apply  to  the  court,  or  a  judge  thereof,  for  an 
order  to  the  master  to  speed  the  proceedings,  and  to  make  his  report, 
and  to  certify  to  the  court  or  judge  the  reasons  for  any  delay. 

76.  In  the  reports  made  by  the  master  to  the  court,  no  part  of  any 
state  of  facts,  charge,  affidavit,  deposition,  examination,  or  answer 
brought  in  or  used  before  them  shall  be  stated  or  recited.  But  such 
state  of  facts,  charge,  affidavit,  deposition,  examination,  or  answer 
shall  be  identified,  specified,  and  referred  to,  so  as  to  inform  the 
court  what  state  of  facts,  charge,  affidavit,  deposition,  examination,  or 
answer  were  so  brought  in  or  used. 

77.  The  master  shall  regulate  all  the  proceedings  in  every  hearing 
before  him,  upon  every  such  reference ;  and  he  shall  have  full  au- 
thority to  examine  the  parties  in  the  cause,  upon  oath,  touching  all 
matters  contained  in  the  reference  ;  and  also  to  require  the  production 
of  all  books,  papers,  writings,  vouchers,  and  other  documents  appli- 
cable thereto  ;  and  also  to  examine  on  oath,  viva  voce,  all  witnesses 
produced  by  the  parties  before  him,  and  to  order  the  examination  of 
other  witnesses  to  be  taken,  under  a  commission  to  be  issued  upon 
his  certificate  from  the  clerk's  office  or  by  deposition,  according  to 
the  acts  of  Congress,  or  otherwise,  as  hereinafter  provided  ;  and  also 
to  direct  the  mode  in  which  the  matters  requiring  evidence  shall  be 
proved  before  him  ;  and  generally  to  do  all  other  acts,  and  direct  all 
other  inquiries  and  proceedings  in  the  matters  before  him,  which  he 
may  deem  necessary  and  proper  to  the  justice  and  merits  thereof  and 
the  rights  of  the  parties. 


RULES    OF   PEACTICE    IN   EQUITY.  683 

78.  Witnesses  who  live  within  the  district  may,  upon  due  notice  to 
the  opposite  party,  be  summoned  to  appear  before  the  commissioner 
appointed  to  take  testimony,  or  before  a  master  or  examiner  appointed 
in  any  cause,  by  subpoena  in  the  usual  form,  which  may  be  issued  by 
the  clerk  in  blank,  and  filled  up  by  the  party  praying  the  same,  or 
by  the  commissioner,  master,  or  examiner,  requiring  the  attendance  of 
the  witnesses  at  the  time  and  place  specified,  who  shall  be  allowed 
for  attendance  the  same  compensation  as  for  attendance  in  court ; 
and  if  any  witness  shall  refuse  to  appear  or  give  evidence,  it  shall  be 
deemed  a  contempt  of  the  court,  which  being  certified  to  the  clerk's 
office  by  the  commissioner,  master,  or  examiner,  an  attachment  may 
issue  thereupon  by  order  of  the  court  or  of  any  judge  thereof,  in  the 
same  manner  as  if  the  contempt  were  for  not  attending,  or  for  refus- 
ing to  give  testimony  in  the  court.  But  nothing  herein  contained 
shall  prevent  the  examination  of  witnesses  viva  voce  when  produced 
in  open  court,  if  the  court  shall,  in  its  discretion,  deem  it  advisable. 

79.  All  parties  accounting  before  a  master  shall  bring  in  their  re- 
spective accounts  in  the  form  of  debtor  and  creditor  ;  and  any  of  the 
other  parties  who  shall  not  be  satisfied  with  the  accounts  so  brought 
in  shall  be  at  liberty  to  examine  the  accounting  party  viva  voce,  or 
upon  interrogatories,  in  the  master's  office,  or  by  deposition,  as  the 
master  shall  direct. 

80.  All  affidavits,  depositions,  and  documents  which  have  been 
previously  made,  read,  or  used  in  the  court,  upon  any  proceeding  in 
any  cause  or  matter,  may  be  used  before  the  master. 

81.  The  master  shall  be  at  liberty  to  examine  any  creditor  or  other 
person  coining  in  to  claim  before  him,  either  upon  written  interroga- 
tories or  viva  voce,  or  in  both  modes,  as  the  nature  of  the  case  may 
appear  to  him  to  require.  The  evidence  upon  such  examinations 
shall  be  taken  down  by  the  master,  or  by  some  other  person  by  his 
order  and  in  his  presence,  if  either  party  requires  it,  in  order  that  the 
same  may  be  used  by  the  court,  if  necessary. 

82.  The  circuit  courts  may  appoint  standing  masters  in  chancery 
in  their  respective  districts,  both  the  judges  concurring  in  the  ap- 
pointment ;  and  they  may  also  appoint  a  master  pro  hac  vice  in  any 
particular  case.  The  compensation  to  be  allowed  to  every  master  in 
chancery  for  his  services  in  any  particular  case  shall  be  fixed  by  the 
circuit  court,  in  its  discretion,  having  regard  to  all  the  circumstances 
thereof,  and  the  compensation  shall  be  charged  upon  and  borne  by 
such  of  the  parties  in  the  cause  as  the  court  shall  direct.  The  master 
shall  not  retain  his  report  as  security  for  his  compensation  ;  but, 
when  the  compensation  is  allowed  by  the  court,  he  shall  be  entitled 
to  an  attachment  for  the  amount  against  the  party  who  is  ordered  to 


G84  APPENDIX. 

pay  the  same,  if,  upon  notice  thereof,  he  does  not  pay  it  within  the 
time  prescribed  by  the  court. 

Exceptions  to  Report  of  Master. 

83.  The  master,  as  soon  as  his  report  is  ready,  shall  return  the  same 
into  the  clerk's  office,  and  the  day  of  the  return  shall  be  entered  by 
the  clerk  in  the  order-book.  The  parties  shall  have  one  month  from 
the  time  of  filing  the  report  to  file  exceptions  thereto  ;  and,  if  no 
exceptions  are  within  that  period  filed  by  either  party,  the  report 
shall  stand  confirmed  on  the  next  rule-day  after  the  month  is  expired. 
If  exceptions  are  filed,  they  shall  stand  for  hearing  before  the  court, 
if  the  court  is  then  in  session  ;  or,  if  not,  then  at  the  next  sitting  of 
the  court  which  shall  be  held  thereafter,  by  adjournment  or  other- 
wise. 

84.  And,  in  order  to  prevent  exceptions  to  reports  from  being  filed 
for  frivolous  causes,  or  for  mere  delay,  the  party  whose  exceptions 
are  overruled  shall,  for  every  exception  overruled,  pay  costs  to  the 
other  party,  and  for  every  exception  allowed  shall  be  entitled  to 
costs  ;  the  cost  to  be  fixed  in  each  case  by  the  court,  by  a  standing 
rule  of  the  circuit  court. 

Decrees  and   Orders. 

85.  Clerical  mistakes  in  decrees  or  decretal  orders,  or  errors  aris- 
ing from  any  accidental  slip  or  omission,  may,  at  any  time  before  an 
actual  enrolment  thereof,  be  corrected  by  order  of  the  court  or  a  judge 
thereof,  upon  petition,  without  the  form  or  expense  of  a  rehearing. 

86.  In  drawing  up  decrees  and  orders,  neither  the  bill,  nor 
answer,  nor  other  pleadings,  nor  any  part  thereof,  nor  the  report 
of  any  master,  nor  any  other  prior  proceeding,  shall  be  recited  or 
stated  in  the  decree  or  order  ;  but  the  decree  and  order  shall  begin, 
in  substance,  as  follows  :  "  This  cause  came  on  to  be  heard  (or  to  be 
further  heard,  as  the  case  may  be)  at  this  term,  and  was  argued  by 
counsel ;  and  thereupon,  upon  consideration  thereof,  it  was  ordered, 
adjudged,  and  decreed  as  follows,  viz : "  [Here  insert  the  decree  or 
order]. 

Guardians  ad  Litem. 

87.  Guardians  ad  litem  to  defend  a  suit  may  be  appointed  by  the 
court,  or  by  any  judge  thereof,  for  infants  or  other  persons  who  are 
under  guardianship,  or  otherwise  incapable  to  sue  for  themselves. 
All  infants  and  other  persons  so  incapable  may  sue  by  their  guardians, 
if  any,  or  by  their  prochein  ami ;  subject,  however,  to  such  orders  as 
the  court  may  direct  for  the  protection  of  infants  and  other  persons. 


RULES   OF    PRACTICE    IN    EQUITY.  6S5 

Rehearings. 

88.  Every  petition  for  a  rehearing  shall  contain  the  special  matter  or 
cause  on  which  such  rehearing  is  applied  for,  shall  be  signed  by  coun- 
sel, and  the  facts  therein  stated,  if  not  apparent  on  the  record,  shall 
be  verified  by  the  oath  of  the  party  or  by  some  other  person.  No 
rehearing  shall  be  granted  after  the  term  at  which  the  final  decree  of 
the  court  shall  have  beeli  entered  and  recorded,  if  an  appeal  lies  to 
the  Supreme  Court.  But  if  no  appeal  lies,  the  petition  may  be 
admitted  at  any  time  before  the  end  of  the  next  term  of  the  court,  in 
the  discretion  of  the  court. 

General  Provisions. 

89.  The  circuit  courts  (both  judges  concurring  therein)  may  make 
any  other  and  further  rules  and  regulations  for  the  practice,  proceed- 
ings, and  process,  mesne  and  final,  in  their  respective  districts,  not 
inconsistent  with  the  rules  hereby  prescribed,  in  their  discretion,  and 
from  time  to  time  alter  and  amend  the  same. 

90.  In  all  cases  where  the  rules  prescribed  by  this  court  or  by  the 
circuit  court  do  not  apply,  the  practice  of  the  circuit  court  shall  be 
regulated  by  the  present  practice  of  the  high  court  of  chancery  in 
England,  so  far  as  the  same  may  reasonably  be  applied  consistently 
with  the  local  circumstances  and  local  conveniences  of  the  district 
where  the  court  is  held,  not  as  positive  rules,  but  as  furnishing  just 
analogies  to  regulate  the  practice. 

91.  Whenever,  under  these  rules,  an  oath  is  or  may  be  required  to 
be  taken,  the  party  may,  if  conscientiously  scrupulous  of  taking  an 
oath,  in  lieu  thereof  make  solemn  affirmation  to  the  truth  of  the  facts 
stated  by  him. 

December  Term,  1863. 

92.  Ordered,  That  in  suits  in  equity  for  the  foreclosure  of  mort- 
gages in  the  circuit  courts  of  the  United  States,  or  in  any  court  of 
the  Territories  having  jurisdiction  of  the  same,  a  decree  may  be  ren- 
dered for  any  balance  that  may  be  found  due  to  the  complainant  over 
and  above  the  proceeds  of  the  sale  or  sales,  and  execution  may  issue 
for  the  collection  of  the  same,  as  is  provided  in  the  eighth  rule  of 
this  court  regulating  the  equity  practice,  where  the  decree  is  solely 
for  the  payment  of  money. 


C86  APPENDIX. 

October  Term,  1878. 

Injunctions. 

93.  When  an  appeal  from  a  final  decree,  in  an  equity  suit,  granting 
or  dissolving  an  injunction,  is  allowed  by  a  justice  or  judge  who  took 
part  in  the  decision  of  the  cause,  he  may,  in  his  discretion,  at  the 
time  of  such  allowance,  make  an  order  suspending  or  modifying  the 
injunction  during  the  pendency  of  the  appeal,  upon  such  terms  as  to 
bond  or  otherwise  as  he  may  consider  proper  for  the  security  of  the 
rights  of  the  opposite  party. 

October  Term,  1881. 

Stockholders'  Bills. 

94.  Every  bill  brought  by  one  or  more  stockholders  in  a  corporation 
against  the  corporation  and  other  parties,  founded  on  rights  which  may 
properly  be  asserted  by  the  corporation,  must  be  verified  by  oath,  and 
must  contain  an  allegation  that  the  plaintiff  was  a  shareholder  at  the 
time  of  the  transaction  of  which  he  complains,  or  that  his  share  had 
devolved  on  him  since  by  operation  of  law,  and  that  the  suit  is  not  a 
collusive  one  to  confer  on  a  court  of  the  United  States  jurisdiction  of 
a  case  of  which  it  would  not  otherwise  have  cognizance.  It  must  also 
set  forth  with  particularity  the  efforts  of  the  plaintiff  to  secure  such 
action  as  he  desires  on  the  part  of  the  managing  Directors  or  Trus- 
tees, and,  if  necessary,  of  the  shareholders,  and  the  causes  of  his 
failure  to  obtain  such  action. 


KULES  OF  THE  SUPREME  COURT  OF  THE  UNITED  STATES.   637 


IV. 

RULES  OF  THE  SUPREME  COURT  OF  THE  UNITED  STATES. 

1.  Clerk. 

1.  The  clerk  of  this  court  shall  reside  and  keep  the  office  at  the 
seat  of  the  National  Government,  and  he  shall  not  practise,  either  as 
attorney  or  counsellor,  in  this  court,  or  in  any  other  court,  while  he 
shall  continue  to  be  clerk  of  this  court. 

2.  The  clerk  shall  not  permit  any  original  record  or  paper  to  be 
taken  from  the  court  room,  or  from  the  office,  without  an  order  from 
the  court,  except  as  provided  by  Rule  10. 

2.  Attorneys  and  Counsellors. 

1.  It  shall  be  requisite  to  the  admission  of  attorneys  or  counsellors 
to  practise  in  this  court,  that  they  shall  have  been  such  for  three  years 
past  in  the  supreme  courts  of  the  States  to  which  they  respectively 
belong,  and  that  their  private  and  professional  character  shall  appear 
to  be  fair. 

2.  They  shall  respectively  take  and  subscribe  the  following  oath  or 
affirmation,  viz. : 

I, ,  do  solemnly  swear  [or  affirm]  that  I  will  demean  my- 
self, as  an  attorney  and  counsellor  of  this  court,  uprightly,  and  accord- 
ing to  law ;  and  that  I  will  support  the  Constitution  of  the  United 
States. 

3.  Practice. 
This  court  considers  the  former  practice  of  the  courts  of  king's 
bench  and  of  chancery,  in  England,  as  affording  outlines  for  the 
practice  of  this    court ;    and  will,   from  time   to   time,  make   such 
alterations  therein  as  circumstances  may  render  necessary. 

4.    Bill  of  Exceptions. 
The  judges  of  the  circuit  and  district  courts  shall  not  allow  any 
bill  of  exceptions  which  shall  contain  the  charge  of  the  court  at  large 
to  the  jury  in  trials  at  common  law,  upon  any  general  exception  to 


688  APPENDIX. 

the  whole  of  such  charge.  But  the  party  excepting  shall  be  required 
to  state  distinctly  the  several  matters  of  law  in  such  charge  to  which 
he  excepts  ;  and  those  matters  of  law,  and  those  only,  shall  be  inserted 
in  the  bill  of  exceptions  and  allowed  by  the  court. 

5.  Process. 

1.  All  process  of  this  court  shall  be  in  the  name  of  the  President  of 
the  United  States. 

2.  When  process  at  common  law  or  in  equity  shall  issue  against  a 
State,  the  same  shall  be  served  on  the  governor,  or  chief  executive 
magistrate,  and  attorney-general  of  such  State. 

3.  Process  of  subpoena,  issuing  out  of  this  court,  in  any  suit  in 
equity,  shall  be  served  on  the  defendant  sixty  days  before  the  return 
day  of  the  said  process ;  and  if  the  defendant,  on  such  service  of  the 
subpoena,  shall  not  appear  at  the  return  day,  the  complainant  shall 
be  at  liberty  to  proceed  ex  parte. 

6.  Motions. 

1.  All  motions  to  the  court  shall  be  reduced  to  writing,  and  shall 
contain  a  brief  statement  of  the  facts  and  objects  of  the  motion. 

2.  One  hour  on  each  side  shall  be  allowed  to  the  argument  of  a 
motion,  and  no  more,  without  special  leave  of  the  court,  granted 
before  the  argument  begins. 

3.  Xo  motion  to  dismiss,  except  on  special  assignment  by  the  court, 
shall  be  heard,  unless  previous  notice  has  been  given  to  the  adverse 
party,  or  the  counsel  or  attorney  of  such  party. 

4.  All  motions  to  dismiss  writs  of  error  and  appeals,  except  motions 
to  docket  and  dismiss  under  Rule  9,  must  be  submitted  in  the  first  in- 
stance on  printed  briefs  or  arguments.  If  the  court  desires  further 
argument  on  that  subject,  it  will  be  ordered  in  connection  with  the 
hearing  on  the  merits.  The  party  moving  to  dismiss  shall  serve 
notice  of  the  motion,  with  a  copy  of  his  brief  or  argument,  on  the 
counsel  for  plaintiff  in  error  or  appellant  of  record  in  this  court, 
at  least  three  weeks  before  the  time  fixed  for  submitting  the  motion, 
in  all  cases  except  where  the  counsel  to  be  notified  resides  west  of 
the  Pocky  Mountains,  in  which  case  the  notice  shall  be  at  least  thirty 
days.  Affidavits  of  the  deposit  in  the  mail  of  the  notice  and  brief  to 
the  proper  address  of  the  counsel  to  be  served,  duly  post-paid,  at  such 
time  as  to  reach  him  by  due  course  of  mail,  the  three  weeks  or  thirty 
days  before  the  time  fixed  by  the  notice,  will  be  regarded  as  prima 
facie  evidence  of  service  on  counsel  who  reside  without  the  District  of 
Columbia.      On  proof  of  such  service,  the  motion  will  be  considered, 


EULES  OF  THE  SUPEEME  COUET  OF  THE  UNITED  STATES.   689 

unless,  for  satisfactory  reasons,  further  time  be  given  by  the  court  to 
either  party. 

5.  There  may  be  united,  with  a  motion  to  dismiss  a  writ  of  error  or 
an  appeal,  a  motion  to  affirm  on  the  ground  that,  although  the  record 
may  show  that  this  court  has  jurisdiction,  it  is  manifest  the  writ  or 
appeal  was  taken  for  delay  only,  or  that  the  question  on  which  the 
jurisdiction  depends  is  so  frivolous  as  not  to  need  further  argument. 

6.  The  court  will  not  hear  arguments  on  Saturday  (unless  for  spe- 
cial cause  it  shall  order  to  the  contrary),  but  will  devote  that  day  to 
the  other  business  of  the  court.  The  motion-day  shall  be  Monday  of 
each  week ;  and  motions  not  required  by  the  rules  of  the  court  to  be 
put  on  the  docket  shall  be  entitled  to  preference  immediately  after 
the  reading  of  opinions,  if  such  motions  shall  be  made  before  the 
court  shall  have  entered  upon  the  hearing  of  a  case  upon  the  docket. 

7.   Law  Library. 

1.  During  the  session  of  the  court,  any  gentleman  of  the  bar  having 
a  case  on  the  docket,  and  wishing  to  use  any  book  or  books  in  the  law 
library,  shall  be  at  liberty,  upon  application  to  the  clerk  of  the  court, 
to  receive  an  order  to  take  the  same  (not  exceeding  at  any  one  time 
three)  from  the  library,  he  being  thereby  responsible  for  the  due  re- 
turn of  the  same  within  a  reasonable  time,  or  when  required  by  the 
clerk.  It  shall  be  the  duty  of  the  clerk  to  keep,  in  a  book  for  that 
purpose,  a  record  of  all  books  so  delivered,  which  are  to  be  charged 
against  the  party  receiving  the  same.  And  in  case  the  same  shall 
not  be  so  returned,  the  party  receiving  the  same  shall  be  responsible 
for  and  forfeit  and  pay  twice  the  value  thereof,  and  also  one  dollar  per 
day  for  each  day's  detention  beyond  the  limited  time. 

2.  The  clerk  shall  deposit  in  the  law  library,  to  be  there  carefully 
preserved,  one  copy  of  the  printed  record  in  every  case  submitted  to 
the  court  for  its  consideration,  and  of  all  printed  motions,  briefs,  or 
arguments  filed  therein. 

3.  The  marshal  shall  take  charge  of  the  books  of  the  court,  together 
with  such  of  the  duplicate  law  books  as  Congress  may  direct  to  be 
transferred  to  the  court,  and  arrange  them  in  the  conference-room, 
which  he  shall  have  fitted  up  in  a  proper  manner ;  and  he  shall  not 
permit  such  books  to  be  taken  therefrom  by  any  one  except  the 
justices  of  the  court. 

8.   Writ  of  Error,  Return  and  Record. 

1.  The  clerk  of  the  court  to  which  any  writ  of  error  may  be  directed 
shall  make  return  of  the  same,  by  transmitting  a  true  copy  of  the  rec- 

44 


690  APPENDIX. 

ord,  and  of  the  assignment  of  errors,  and  of  all  proceedings  in  the 
case,  under  his  hand  and  the  seal  of  the  court. 

2.  In  all  cases  brought  to  this  court,  by  writ  of  error  or  appeal,  to 
review  any  judgment  or  decree,  the  clerk  of  the  court  by  which  such 
judgment  or  decree  was  rendered  shall  annex  to  and  transmit  with  the 
record  a  copy  of  the  opinion  or  opinions  filed  in  the  case. 

3.  No  case  will  be  heard  until  a  complete  record,  containing  in 
itself,  and  not  by  reference,  all  the  papers,  exhibits,  depositions,  and 
other  proceedings,  which  are  necessary  to  the  hearing  in  this  court, 
shall  be  filed. 

4.  Whenever  it  shall  be  necessary  or  proper,  in  the  opinion  of  the 
presiding  judge  in  any  circuit  court,  or  district  court,  exercising 
circuit  court  jurisdiction,  that  original  papers  of  any  kind  should  be 
inspected  in  this  court  upon  writ  of  error  or  appeal,  such  presiding 
judge  may  make  such  rule  or  order  for  the  safe-keeping,  transporting, 
and  return  of  such  original  papers  as  to  him  may  seem  proper ;  and 
this  court  will  receive  and  consider  such  original  papers  in  connection 
with  the  transcript  of  the  proceedings. 

5.  In  cases  where  final  judgment  is  rendered  more  than  thirty  days 
before  the  first  day  of  the  next  term  of  this  court,  the  writ  of  error 
and  citation,  if  taken  before,  must  be  returnable  on  the  first  day  of 
said  term,  and  be  served  before  that  day ;  but  in  cases  where  the 
judgment  is  rendered  less  than  thirty  days  before  the  first  day,  the 
writ  of  error  and  citation  may  be  made  returnable  on  the  third  Mon- 
day of  the  said  term,  and  be  served  before  that  day. 

6.  The  record  in  cases  of  admiralty  and  maritime  jurisdiction,  when 
under  the  requirements  of  law  the  facts  have  been  found  in  the  court 
below,  and  the  power  of  review  is  limited  to  the  determination  of 
questions  of  law  arising  on  the  record,  shall  be  confined  to  the  plead- 
ings, the  findings  of  fact  and  conclusions  of  law  thereon,  the  bills  of 
exceptions,  the  final  judgment  or  decree,  and  such  interlocutory  orders 
and  decrees  as  may  be  necessary  to  a  proper  review  of  the  case. 

9.  Docketing  Cases. 
1.  In  all  cases  where  a  writ  of  error  or  an  appeal  shall  be  brought 
to  this  court  from  any  judgment  or  decree  rendered  thirty  days  before 
the  commencement  of  the  term,  it  shall  be  the  duty  of  the  plaintiff  in 
error  or  appellant  to  docket  the  case  and  file  the  record  thereof  with 
the  clerk  of  this  court  within  the  first  six  days  of  the  term ;  and  if 
the  writ  of  error  or  appeal  shall  be  brought  from  a  judgment  or  de- 
cree rendered  less  than  thirty  days  before  the  commencement  of  the 
term,  it  shall  be  the  duty  of  the  plaintiff  in  error  or  appellant  to 
docket  the  case  and  file  the  record  thereof  with  the  clerk  of  this 


RULES  OF  THE  SUPREME  COURT  OF  THE  UNITED  STATES.   691 

court  within  the  first  thirty  days  of  the  term  ;  and  if  the  plaintiff  in 
error  or  appellant  shall  fail  to  comply  with  this  rule,  the  defendant 
in  error  or  appellee  may  have  the  case  docketed  and  dismissed,  upon 
producing  a  certificate  from  the  clerk  of  the  court  wherein  the  judg- 
ment or  decree  was  rendered  stating  the  case,  and  certifying  that 
such  writ  of  error  or  appeal  has  been  duly  sued  out  and  allowed. 
And  in  no  case  shall  the  plaintiff  in  error  or  appellant  be  entitled 
to  docket  the  case  and  file  the  record  after  the  same  shall  have  been 
docketed  and  dismissed  under  this  rule,  unless  by  order  of  the  court. 

2.  But  the  defendant  in  error  or  appellee  may,  at  his  option,  docket 
the  case  and  file  a  copy  of  the  record  with  the  clerk  of  the  court ;  and 
if  the  case  is  docketed  and  a  copy  of  the  record  filed  with  the  clerk  of 
this  court  by  the  plaintiff  in  error  or  appellant  within  the  periods  of 
time  above  limited  and  prescribed  by  this  rule,  or  by  the  defendant 
in  error  or  appellee  at  any  time  thereafter  during  the  term,  the  case 
shall  stand  for  argument  at  the  term. 

3.  Upon  the  filing  of  the  transcript  of  a  record  brought  up  by  writ  of 
error  or  appeal,  the  appearance  of  the  counsel  for  the  party  docketing 
the  case  shall  be  entered. 

4.  In  all  cases  where  the  period  of  thirty  days  is  mentioned  in  this 
rule,  it  shall  be  extended  to  sixty  days  in  writs  of  error  and  appeals 
from  California,  Oregon,  Nevada,  Washington,  New  Mexico,  Utah, 
Arizona,  Montana,  and  Idaho. 

10.   Printing  Records. 

1.  In  all  cases  the  plaintiff  in  error  or  appellant,  on  docketing  a 
case  and  filing  the  record,  shall  enter  into  an  undertaking  to  the 
clerk,  with  surety  to  his  satisfaction,  for  the  payment  of  his  fees, 
or  otherwise  satisfy  him  in  that  behalf. 

2.  The  clerk  shall  cause  an  estimate  to  be  made  of  the  cost  of  print- 
ing the  record,  and  of  his  fee  for  preparing  it  for  the  printer  and  su- 
pervising the  printing,  and  shall  notify  to  the  party  docketing  the 
case  the  amount  of  the  estimate.  If  he  shall  not  pay  it  within  a  rea- 
sonable time,  the  clerk  shall  notify  the  adverse  party,  and  he  may  pay 
it.  If  neither  party  shall  pay  it,  and  for  want  of  such  payment  the 
record  shall  not  have  been  printed  when  a  case  is  reached  in  the 
regular  call  of  the  docket,  after  March  1st,  1884,  the  case  shall 
be  dismissed. 

3.  Upon  payment  by  either  party  of  the  amount  estimated  by  the 
clerk,  twenty-five  copies  of  the  record  shall  be  printed,  under  his  su- 
pervision, for  the  use  of  the  court  and  of  counsel. 

4.  In  cases  of  appellate  jurisdiction  the  original  transcript  on  file 
shall  be  taken  by  the  clerk  to  the  printer.      But  the  clerk  shall  cause 


692  APPENDIX. 

copies  to  be  made  for  the  printer  of  such  original  papers,  sent  up 
under  Rule  8,  Section  4,  as  are  necessary  to  be  printed ;  and  of  the 
whole  record  in  cases  of  original  jurisdiction. 

5.  The  clerk  shall  supervise  the  printing,  and  see  that  the  printed 
copy  is  properly  indexed.  He  shall  distribute  the  printed  copies  to 
the  justices  and  the  reporter,  from  time  to  time,  as  required,  and  a 
copy  to  the  counsel  for  the  respective  parties. 

6.  If  the  actual  cost  of  printing  the  record,  together  with  the  fee 
of  the  clerk,  shall  be  less  than  the  amount  estimated  and  paid,  the 
amount  of  the  difference  shall  be  refunded  by  the  clerk  to  the  party 
paying  it.  If  the  actual  cost  and  clerk's  fee  shall  exceed  the  estimate, 
the  amount  of  the  excess  shall  be  paid  to  the  clerk  before  the  delivery 
of  a  printed  copy  to  either  party  or  his  counsel. 

7.  In  case  of  reversal,  affirmance,  or  dismissal,  with  costs,  the 
amount  of  the  cost  of  printing  the  record  and  of  the  clerk's  fee 
shall  be  taxed  against  the  party  against  whom  costs  are  given,  and 
shall  be  inserted  in  the  body  of  the  mandate  or  other  proper  process. 

8.  Upon  the  clerk's  producing  satisfactory  evidence,  by  affidavit  or 
the  acknowledgment  of  the  parties  or  their  sureties,  of  having  served 
a  copy  of  the  bill  of  fees  due  by  them,  respectively,  in  this  court, 
on  such  parties  or  their  sureties,  an  attachment  shall  issue  against 
such  parties  or  sureties,  respectively,  to  compel  payment  of  the  said 
fees. 

October  Term,  1886. 

Ordered,  That  the  following  section  be  added  to  Rule  10  : 

9.  The  plaintiff  in  error  or  appellant  may,  within  ninety  days  after 
filing  the  record  in  this  court,  file  with  the  clerk  a  statement  of  the 
errors  on  which  he  intends  to  rely,  and  of  the  parts  of  the  record 
which  he  thinks  necessary  for  the  consideration  thereof,  and  forth- 
with serve  on  the  adverse  party  a  copy  of  such  statement.  The  ad- 
verse party,  within  ninety  days  thereafter,  may  designate  in  writing, 
filed  with  the  clerk,  additional  parts  of  the  record  which  he  thinks 
material ;  and,  if  he  shall  not  do  so,  he  shall  be  held  to  have  con- 
sented to  a  hearing  in  the  parts  designated  by  the  plaintiff  in  error 
or  appellant.  If  parts  of  the  record  shall  be  so  designated  by  one  or 
both  of  the  parties,  the  clerk  shall  print  those  parts  only ;  and  the 
court  will  consider  nothing  but  those  parts  of  the  record,  and  the 
errors  so  stated.  If  at  the  hearing  it  shall  appear  that  any  material 
part  of  the  record  has  not  been  printed,  the  writ  of  error  or  appeal 
may  be  dismissed,  or  such  other  order  made  as  the  circumstances  may 
appear  to  the  court  to  require.      If  the  defendant  in  error  or  appellee 


RULES  OF  THE  SUPREME  COURT  OF  THE  UNITED  STATES.   693 

shall  have  caused  unnecessary  parts  of  the  record  to  be  printed,  such 
order  as  to  costs  may  be  made  as  the  court  shall  think  proper. 

The  fees  of  the  clerk,  under  Rule  24,  Section  7,  shall  be  computed, 
as  at  present,  in  the  folios  in  the  record  as  filed,  and  shall  be  in  full 
for  the  performance  of  his  duties  in  the  execution  hereof. 

Promulgated  March  28,  1887. 

11.    Translations. 

Whenever  any  record  transmitted  to  this  court  upon  a  writ  of  error 
or  appeal  shall  contain  any  document,  paper,  testimony,  or  other  pro- 
ceedings in  a  foreign  language,  and  the  record  does  not  also  contain  a 
translation  of  such  document,  paper,  testimony,  or  other  proceedings, 
made  under  the  authority  of  the  inferior  court,  or  admitted  to  be  cor- 
rect, the  record  shall  not  be  printed  ;  but  the  case  shall  be  reported 
to  this  court  by  the  clerk,  and  the  court  will  thereupon  remand  it  to 
the  inferior  court,  in  order  that  a  translation  may  be  there  supplied 
and  inserted  in  the  record. 

12.   Further  Proof. 

1.  In  all  cases  where  further  proof  is  ordered  by  the  court,  the  de- 
positions which  may  be  taken  shall  be  by  a  commission,  to  be  issued 
from  this  court,  or  from  any  circuit  court  of  the  United  States. 

2.  In  all  cases  of  admiralty  and  maritime  jurisdiction,  where  new 
evidence  shall  be  admissible  in  this  court,  the  evidence  by  testimony 
of  witnesses  shall  be  taken  under  a  commission  to  be  issued  from  this 
court,  or  from  any  circuit  court  of  the  United  States,  under  the 
direction  of  any  judge  thereof ;  and  no  such  commission  shall  issue 
but  upon  interrogatories,  to  be  filed  by  the  party  applying  for  the 
commission,  and  notice  to  the  opposite  party  or  his  agent  or  attorney, 
accompanied  with  a  copy  of  the  interrogatories  so  filed,  to  file  cross- 
interrogatories  within  twenty  days  from  the  service  of  such  notice  : 
Provided,  however,  That  nothing  in  this  rule  shall  prevent  any  party 
from  giving  oral  testimony  in  open  court  in  cases  where  by  law  it  is 
admissible. 

13.   Objections  to  Evidence  in  the  Record. 

In  all  cases  of  equity  or  admiralty  jurisdiction,  heard  in  this  court, 
no  objection  shall  hereafter  be  allowed  to  be  taken  to  the  admissibility 
of  any  deposition,  deed,  grant,  or  other  exhibit  found  in  the  record  as 
evidence,  unless  objection  was  taken  thereto  in  the  court  below  and 
entered  of  record  ;  but  the  same  shall  otherwise  be  deemed  to  have 
been  admitted  by  consent. 


694  APPENDIX. 

14.  Certiorari. 
No  certiorari  for  diminution  of  the  record  will  be  hereafter  awarded 
in  any  case,  unless  a  motion  therefor  shall  be  made  in  writing,  and  the 
facts  on  which  the  same  is  founded  shall,  if  not  admitted  by  the  other 
party,  be  verified  by  affidavit.  And  all  motions  for  such  certiorari 
must  be  made  at  the  first  term  of  the  entry  of  the  case  ;  otherwise, 
the  same  will  not  be  granted,  unless  upon  special  cause  shown  to  the 
court,  accounting  satisfactorily  for  the  delay. 

15.   Death  of  a  Party. 

1.  Whenever,  pending  a  writ  of  error  or  appeal  in  this  court,  either 
party  shall  die,  the  proper  representatives  in  the  personalty  or  realty 
of  the  deceased  party,  according  to  the  nature  of  the  case,  may  volun- 
tarily come  in  and  be  admitted  parties  to  the  suit,  and  thereupon  the 
case  shall  be  heard  and  determined  as  in  other  cases ;  and  if  such  rep- 
resentatives shall  not  voluntarily  become  parties,  then  the  other  party 
may  suggest  the  death  on  the  record,  and  thereupon,  on  motion,  obtain 
an  order  that  unless  such  representatives  shall  become  parties  within 
the  first  ten  days  of  the  ensuing  term,  the  party  moving  for  such 
order,  if  defendant  in  error,  shall  be  entitled  to  have  the  writ  of 
error  or  appeal  dismissed ;  and  if  the  party  so  moving  shall  be  plain- 
tiff in  error,  he  shall  be  entitled  to  open  the  record,  and  on  hearing 
have  the  judgment  or  decree  reversed,  if  it  be  erroneous  :  Provided, 
however,  That  a  copy  of  every  such  order  shall  be  printed  in  some 
newspaper  of  general  circulation  within  the  State,  Territory,  or  Dis- 
trict from  which  the  case  is  brought,  for  three  successive  weeks,  at 
least  sixty  days  before  the  beginning  of  the  term  of  the  Supreme 
Court  then  next  ensuing. 

2.  When  the  death  of  a  party  is  suggested,  and  the  representatives 
of  the  deceased  do  not  appear  by  the  tenth  day  of  the  second  term 
next  succeeding  the  suggestion,  and  no  measures  are  taken  by  the 
opposite  party  within  that  time  to  compel  their  appearance,  the  case 
shall  abate. 

3.  When  either  party  to  a  suit  in  a  circuit  court  of  the  United 
States  shall  desire  to  prosecute  a  writ  of  error  or  appeal  to  the  Su- 
preme Court  of  the  United  States,  from  any  final  judgment  or  decree, 
rendered  in  the  circuit  court,  and  at  the  time  of  suing  out  such  writ  of 
error  or  appeal  the  other  party  to  the  suit  shall  be  dead  and  have  no 
proper  representative  within  the  jurisdiction  of  the  court  which  ren- 
dered such  final  judgment  or  decree,  so  that  the  suit  cannot  be  revived 
in  that  court,  but  shall  have  a  proper  representative  in  some  State  or 
Territory  of  the  United  States,  the  party  desiring  such  writ  of  error 


RULES   OF   THE   SUPREME   COURT  OF  THE  UNITED   STATES.      695 

or  appeal  may  procure  the  same,  and  may  have  proceedings  on  such 
judgment  or  decree  superseded  or  stayed  in  the  same  manner  as  is 
now  allowed  by  law  in  other  cases,  and  shall  thereupon  proceed  with 
such  writ  of  error  or  appeal  as  in  other  cases.  And  within  thirty  days 
after  the  commencement  of  the  term  to  which  such  writ  of  error 
or  appeal  is  returnable,  the  plaintiff  in  error  or  appellant  shall  make 
a  suggestion  to  the  court,  supported  by  affidavit,  that  the  said  party 
was  dead  when  the  writ  of  error  or  appeal  was  taken  or  sued  out,  and 
had  no  proper  representative  within  the  jurisdiction  of  the  court 
which  rendered  said  judgment  or  decree,  so  that  the  suit  could  not 
be  revived  in  that  court,  and  that  said  party  had  a  proper  represen- 
tative in  some  State  or  Territory  of  the  United  States,  and  stating 
therein  the  name  and  character  of  such  representative,  and  the  State 
or  Territory  in  which  such  representative  resides ;  and,  upon  such 
suggestion,  he  may,  on  motion,  obtain  an  order  that,  unless  such  rep- 
resentative shall  make  himself  a  party  within  the  first  ten  days  of 
the  ensuing  term  of  the  court,  the  plaintiff  in  error  or  appellant  shall 
be  entitled  to  open  the  record,  and,  on  hearing,  have  the  judgment  or 
decree  reversed,  if  the  same  be  erroneous  :  Provided,  however,  That 
a  proper  citation  reciting  the  substance  of  such  order  shall  be  served 
upon  such  representative,  either  personally  or  by  being  left  at  his  res- 
idence, at  least  sixty  days  before  the  beginning  of  the  term  of  the 
Supreme  Court  then  next  ensuing  :  And  provided,  also,  That  in  every 
such  case  if  the  representative  of  the  deceased  party  does  not  appear 
by  the  tenth  day  of  the  term  next  succeeding  such  suggestion,  and 
the  measures  above  provided  to  compel  the  appearance  of  such  rep- 
resentative have  not  been  taken  within  the  time  as  above  required, 
by  the  opposite  party,  the  case  shall  abate  :  And  provided,  also,  That 
the  said  representative  may  at  any  time  before  or  after  said  sug- 
gestion come  in  and  be  made  a  party  to  the  suit,  and  thereupon  the 
case  shall  proceed,  and  be  heard  and  determined  as  in  other  cases. 

16.   No  Appearance  of  Plaintiff. 

Where  no  counsel  appears  and  no  brief  has  been  filed  for  the  plain- 
tiff in  error  or  appellant,  when  the  case  is  called  for  trial,  the  defend- 
ant may  have  the  plaintiff  called  and  the  writ  of  error  or  appeal 
dismissed,  or  may  open  the  record  and  pray  for  an  affirmance. 

17.   No  Appearance  of  Defendant. 

Where  the  defendant  fails  to  appear  when  the  case  is  called  for 
trial,  the  court  may  proceed  to  hear  an  argument  on  the  part  of  the 
plaintiff  and  to  give  judgment  according  to  the  right  of  the  case. 


696  APPENDIX. 

18.   No  Appearance  of  Either  Party. 
When  a  case  is  reached  in  the  regular  call  of  the  docket,  and  there 
is  no  appearance  for  either  party,  the  case  shall  be  dismissed  at  the 
cost  of  the  plaintiff. 

19.  Neither  Party  ready  at  Second  Term. 
When  a  case  is  called  for  argument  at  two  successive  terms,  and 
upon  the  call  at  the  second  term  neither  party  is  prepared  to  argue  it, 
it  shall  be  dismissed  at  the  cost  of  the  plaintiff,  unless  sufficient  cause 
is  shown  for  further  postponement. 

20.  Printed  Arguments. 

1.  In  all  cases  brought  here  on  writ  of  error,  appeal,  or  otherwise, 
the  court  will  receive  printed  arguments  without  regard  to  the  num- 
ber of  the  case  on  the  docket,  if  the  counsel  on  both  sides  shall  choose 
to  submit  the  same  within  the  first  ninety  days  of  the  term,  and, 
in  addition,  appeals  from  the  Court  of  Claims  may  be  submitted  by 
both,  within  thirty  days  after  they  are  doeketed,  but  not  after  the 
first  day  of  April ;  but  twenty-five  copies  of  the  arguments,  signed 
by  attorneys  or  counsellors  of  this  court,  must  be  first  filed. 

2.  When  a  case  is  reached  in  the  regular  call  of  the  docket,  and  a 
printed  argument  shall  be  filed  for  one  or  both  parties,  the  case  shall 
stand  on  the  same  footing  as  if  there  were  an  appearance  by  counsel. 

3.  When  a  case  is  taken  up  for  trial  upon  the  regular  call  of  the 
docket,  and  argued  orally  in  behalf  of  only  one  of  the  parties,  no 
printed  argument  for  the  opposite  party  will  be  received,  unless  it  is 
filed  before  the  oral  argument  begins,  and  the  court  will  proceed  to 
consider  and  decide  the  case  upon  the  ex  parte  argument. 

4.  No  brief  or  argument  will  be  received,  either  through  the  clerk 
or  otherwise,  after  a  case  has  been  argued  or  submitted,  except  upon 
leave  granted  in  open  court  after  notice  to  opposing  counsel. 

21.   Briefs. 

1.  The  counsel  for  the  plaintiff  in  error  or  appellant  shall  file  with 
the  clerk  of  the  court,  at  least  six  days  before  the  case  is  called  for 
argument,  twenty-five  copies  of  a  printed  brief,  one  of  which  shall,  on 
application,  be  furnished  to  each  of  the  counsel  engaged  upon  the 
opposite  side. 

2.  This  brief  shall  contain,  in  the  order  here  stated  — 

(1)  A  concise  abstract,  or  statement  of  the  case,  presenting  suc- 
cinctly the  questions  involved  and  the  manner  in  which  they  are 
raised. 


RULES   OF   THE   SUPREME   COURT   OF  THE   UNITED   STATES.      697 

(2)  A  specification  of  the  errors  relied  upon,  which,  in  cases  brought 
up  by  writ  of  error,  shall  set  out  separately  and  particularly  each  error 
asserted  and  intended  to  be  urged ;  and  in  cases  brought  up  by  appeal 
the  specification  shall  state,  as  particularly  as  may  be,  in  what  the 
decree  is  alleged  to  be  erroneous.  When  the  error  alleged  is  to  the 
admission  or  to  the  rejection  of  evidence,  the  specification  shall 
quote  the  full  substance  of  the  evidence  admitted  or  rejected.  When 
the  error  alleged  is  to  the  charge  of  the  court,  the  specification  shall 
set  out  the  part  referred  to  totidem  verbis,  whether  it  be  instructions 
given  or  instructions  refused.  When  the  error  alleged  is  to  a  ruling 
upon  the  report  of  a  master,  the  specification  shall  state  the  exception 
to  the  report  and  the  action  of  the  court  upon  it. 

(3)  A  brief  of  the  argument,  exhibiting  a  clear  statement  of  the 
points  of  law  or  fact  to  be  discussed,  with  a  reference  to  the  pages  of 
the  record  and  the  authorities  relied  upon  in  support  of  each  point. 
When  a  statute  of  a  State  is  cited,  so  much  thereof  as  may  be  deemed 
necessary  to  the  decision  of  the  case  shall  be  printed  at  length. 

3.  The  counsel  for  a  defendant  in  error  or  an  appellee  shall  file 
with  the  clerk  twenty-five  printed  copies  of  his  argument,  at  least 
three  days  before  the  case  is  called  for  hearing.  His  brief  shall  be 
of  a  like  character  with  that  required  of  the  plaintiff  in  error  or  ap- 
pellant, except  that  no  specification  of  errors  shall  be  required,  and 
no  statement  of  the  case,  unless  that  presented  by  the  plaintiff  in 
error  or  appellant  is  controverted. 

4.  When  there  is  no  assignment  of  errors,  as  required  by  section 
997  of  the  Revised  Statutes,  counsel  will  not  be  heard,  except  at  the 
request  of  the  court ;  and  errors  not  specified  according  to  this  rule 
will  be  disregarded ;  but  the  court,  at  its  option,  may  notice  a  plain 
error  not  assigned  or  specified. 

5.  When,  according  to  this  rule,  a  plaintiff  in  error  or  an  appellant 
is  in  default,  the  case  may  be  dismissed  on  motion  ;  and  when  a  de- 
fendant in  error  or  an  appellee  is  in  default,  he  will  not  be  heard, 
except  on  consent  of  his  adversary,  and  by  request  of  the  court. 

6.  When  no  counsel  appears  for  one  of  the  parties,  and  no  printed 
brief  or  argument  is  filed,  only  one  counsel  will  be  heard  for  the  ad- 
verse party  ;  but  if  a  printed  brief  or  argument  is  filed,  the  adverse 
party  will  be  entitled  to  be  heard  by  two  counsel. 

22.   Oral  Arguments. 

1.  The  plaintiff  or  appellant  in  this  court  shall  be  entitled  to  open 
and  conclude  the  argument  of  the  case.  But  when  there  are  cross- 
appeals  they  shall  be  argued  together  as  one  case,  and  the  plaintiff 


698  APPENDIX. 

in  the  court  below  shall   be    entitled  to  open  and  conclude   the 
argument. 

2.  Only  two  counsel  will  be  heard  for  each  party  on  the  argument 
of  a  case. 

3.  Two  hours  on  each  side  will  be  allowed  for  the  argument,  and  no 
more,  without  special  leave  of  the  court,  granted  before  the  argument 
begins.  The  time  thus  allowed  may  be  apportioned  between  the 
counsel  on  the  same  side,  at  their  discretion  :  Provided,  always,  That 
a  fair  opening  of  the  case  shall  be  made  by  the  party  having  the 
opening  and  closing  arguments. 

23.   Interest. 

1.  In  cases  where  a  writ  of  error  is  prosecuted  to  this  court,  and 
the  judgment  of  the  inferior  court  is  affirmed,  the  interest  shall  be 
calculated  and  levied,  from  the  date  of  the  judgment  below  until  the 
same  is  paid,  at  the  same  rate  that  similar  judgments  bear  interest  in 
the  courts  of  the  State  where  such  judgment  is  rendered. 

2.  In  all  cases  where  a  writ  of  error  shall  delay  the  proceedings  on 
the  judgment  of  the  inferior  court,  and  shall  appear  to  have  been 
sued  out  merely  for  delay,  damages  at  a  rate  not  exceeding  ten  per 
cent.,  in  addition  to  interest,  shall  be  awarded  upon  the  amount  of 
the  judgment. 

3.  The  same  rule  shall  be  applied  to  decrees  for  the  payment  of 
money  in  cases  in  equity,  unless  otherwise  ordered  by  this  court. 

4.  In  cases  in  admiralty,  interest  shall  not  be  allowed,  unless  spe- 
cially directed  by  the  court. 

24.   Costs. 

1.  In  all  cases  where  any  suit  shall  be  dismissed  in  this  court,  ex- 
cept where  the  dismissal  shall  be  for  want  of  jurisdiction,  costs  shall 
be  allowed  to  the  defendant  in  error  or  appellee,  unless  otherwise 
agreed  by  the  parties. 

2.  In  all  cases  of  affirmance  of  any  judgment  or  decree  in  this  court, 
costs  shall  be  allowed  to  the  defendant  in  error  or  appellee,  unless 
otherwise  ordered  by  the  court. 

3.  In  cases  of  reversal  of  any  judgment  or  decree  in  this  court, 
costs  shall  be  allowed  to  the  plaintiff  in  error  or  appellant,  unless 
otherwise  ordered  by  the  court.  The  cost  of  the  transcript  of  the 
record  from  the  court  below  shall  be  a  part  of  such  costs,  and  be 
taxable  in  that  court  as  costs  in  the  case. 

4.  Neither  of  the  foregoing  sections  shall  apply  to  cases  where  the 
United  States  are  a  party ;  but  in  such  cases  no  costs  shall  be  al- 
lowed in  this  court  for  or  against  the  United  States. 


RULES   OF   THE   SUPREME   COURT   OF   THE   UNITED   STATES.      699 

5.  In  all  cases  of  the  dismissal  of  any  suit  in  this  court,  it  shall  be 
the  duty  of  the  clerk  to  issue  a  mandate,  or  other  proper  process,  in 
the  nature  of  a  procedendo,  to  the  court  below,  for  the  purpose  of  in- 
forming such  court  of  the  proceedings  in  this  court,  so  that  further 
proceedings  may  be  had  in  such  court  as  to  law  and  justice  may 
appertain. 

6.  When  costs  are  allowed  in  this  court,  it  shall  be  the  duty  of  the 
clerk  to  insert  the  amount  thereof  in  the  body  of  the  mandate,  or 
other  proper  process,  sent  to  the  court  below,  and  annex  to  the  same 
the  bill  of  items  taxed  in  detail. 

7.  In  pursuance  of  the  act  of  March  3d,  1883,  authorizing  and  em- 
powering this  court  to  prepare  a  table  of  fees  to  be  charged  by  the 
clerk  of  this  court,  the  following  table  is  adopted  : 

For  docketing  a  case  and  filing  and  indorsing  the  transcript  of  the 
record,  five  dollars. 

For  entering  an  appearance,  twenty-five  cents. 

For  entering  a  continuance,  twenty-five  cents. 

For  filing  a  motion,  order,  or  other  paper,  twenty-five  cents. 

For  entering  any  rule,  or  for  making  or  copying  any  record  or  other 
paper,  twenty  cents  per  folio  of  each  one  hundred  words. 

For  transferring  each  case  to  a  subsequent  docket  and  indexing  the 
same,  one  dollar. 

For  entering  a  judgment  or  decree,  one  dollar. 

For  every  search  of  the  records  of  the  court,  one  dollar. 

For  a  certificate  and  seal,  two  dollars. 

For  receiving,  keeping,  and  paying  money  in  pursuance  of  any  stat- 
ute or  order  of  court,  two  per  cent,  on  the  amount  so  received,  kept, 
and  paid. 

For  an  admission  to  the  bar  and  certificate  under  seal,  ten  dollars. 

For  preparing  the  record  or  a  transcript  thereof  for  the  printer,  index- 
ing the  same,  supervising  the  printing  and  distributing  the  printed 
copies  to  the  justices,  the  reporter,  the  law  library,  and  the  parties  or 
their  counsel,  fifteen  cents  per  folio. 

For  making  a  manuscript  copy  of  the  record,  when  required  under 
Rule  10,  twenty  cents  per  folio,  but  nothing  in  addition  for  supervis- 
ing the  printing. 

For  issuing  a  writ  of  error  and  accompanying  papers,  five  dollars. 

For  a  mandate  or  other  process,  five  dollars. 

For  filing  briefs,  five  dollars  for  each  party  appearing. 

For  every  copy  of  any  opinion  of  the  court  or  any  justice  thereof, 
certified  under  seal,  one  dollar  for  every  printed  page,  but  not  to 
exceed  five  dollars  in  the  whole  for  any  copy. 


700  APPENDIX. 

25.   Opinions  of  the  Court. 

1.  All  opinions  delivered  by  the  court  shall,  immediately  upon  the 
delivery  thereof,  be  handed  to  the  clerk  to  be  recorded.  And  it  shall 
be  the  duty  of  the  clerk  to  cause  the  same  to  be  forthwith  recorded, 
and  to  deliver  a  copy  to  the  reporter  as  soon  as  the  same  shall  be 
recorded. 

2.  The  original  opinions  of  the  court  shall  be  filed  with  the  clerk  of 
this  court  for  preservation. 

3.  Opinions  printed  under  the  supervision  of  the  justices  delivering 
the  same  need  not  be  copied  by  the  clerk  into  a  book  of  records ;  but 
at  the  end  of  each  term  the  clerk  shall  cause  such  printed  opinions  to 
be  bound  in  a  substantial  manner  into  one  or  more  volumes,  and  when 
so  bound  they  shall  be  deemed  to  have  been  recorded  within  the  mean- 
ing of  this  rule. 

26.   Call  and  Order  of  the  Docket. 
[As  amended  in  October  Term,  1888, 130  U.  S.  706.] 

1.  The  court,  on  the  second  day  in  each  term,  will  commence  call- 
ing the  cases  for  argument  in  the  order  in  which  they  stand  on  the 
docket,  and  proceed  from  day  to  day  during  the  term  in  the  same 
order  (except  as  hereinafter  provided) ;  and  if  the  parties,  or  either  of 
them,  shall  be  ready  when  the  case  is  called,  the  same  will  be  heard ; 
and  if  neither  party  shall  be  ready  to  proceed  in  the  argument,  the 
case  shall  go  down  to  the  foot  of  the  docket,  unless  some  good  and 
satisfactory  reason  to  the  contrary  shall  be  shown  to  the  court. 

2.  Ten  cases  only  shall  be  considered  as  liable  to  be  called  on  each 
day  during  the  term.  But  on  the  coming  in  of  the  court  on  each  day 
the  entire  number  of  such  ten  cases  will  be  called,  with  a  view  to  the 
disposition  of  such  of  them  as  are  not  to  be  argued. 

3.  Criminal  cases  may  be  advanced  by  leave  of  the  court  on  motion 
of  either  party. 

4.  Cases  once  adjudicated  by  this  court  upon  the  merits,  and  again 
brought  up  by  writ  of  error  or  appeal,  may  be  advanced  by  leave  of 
the  court  on  motion  of  either  party. 

5.  Eevenue  and  other  cases  in  which  the  United  States  are  con- 
cerned, which  also  involve  or  affect  some  matter  of  general  public 
interest,  may  also  by  leave  of  the  court  be  advanced  on  motion  of  the 
attorney-general. 

6.  All  motions  to  advance  cases  must  be  printed,  and  must  contain 
a  brief  statement  of  the  matter  involved,  with  the  reasons  for  the 
application. 


EULES  OF  THE  SUPREME  COURT  OF  THE  UNITED  STATES.   701 

7.  No  other  case  will  be  taken  up  out  of  the  order  on  the  docket,  or 
be  set  down  for  any  particular  day,  except  under  special  and  peculiar 
circumstances  to  be  shown  to  the  court.  Every  case  which  shall  have 
been  called  in  its  order  and  passed  and  put  at  the  foot  of  the  docket 
shall,  if  not  again  reached  during  the  term  it  was  called,  be  continued 
to  the  next  term  of  the  court. 

8.  Two  or  more  cases,  involving  the  same  question,  may,  by  the 
leave  of  the  court,  be  heard  together,  but  they  must  be  argued  as 
one  case. 

9.  If,  after  a  case  has  been  passed  under  circumstances  which  do 
not  place  it  at  the  foot  of  the  docket,  the  parties  shall  desire  to  have 
it  heard,  they  may  file  with  the  clerk  their  joint  retpiest  to  that 
effect,  and  the  case  shall  then  be  by  him  reinstated  for  call  ten  cases 
after  that  under  argument,  or  next  to  be  called  at  the  end  of  the  day 
the  request  is  filed.  If  the  parties  will  not  unite  in  such  a  request, 
either  may  move  to  take  up  the  case,  and  it  shall  then  be  assigned  to 
such  place  upon  the  docket  as  the  court  may  direct. 

10.  No  stipulation  to  pass  a  case  without  placing  it  at  the  foot 
of  the  docket  will  be  recognized  as  binding  upon  the  court.  A  case 
can  only  be  so  passed  upon  application  made  and  leave  granted  in 
open  court. 

27.  Adjournment. 
The  court  will,  at  every  term,  announce  on  what  day  it  will  adjourn 
at  least  ten  days  before  the  time  which  shall  be  fixed  upon,  and  the 
court  will  take  up  no  case  for  argument,  nor  receive  any  case  upon 
printed  briefs,  within  three  days  next  before  the  day  fixed  upon  for 
adjournment. 

28.  Dismissing  Cases  in  Vacation. 
Whenever  the  plaintiff  and  defendant  in  a  writ  of  error  pending  in 
this  court,  or  the  appellant  and  appellee  in  an  appeal,  shall  in  vaca- 
tion, by  their  attorneys  of  record,  sign  and  file  with  the  clerk  an 
agreement  in  writing  directing  the  case  to  be  dismissed,  and  specify- 
ing the  terms  on  which  it  is  to  be  dismissed  as  to  costs,  and  shall  pay 
to  the  clerk  any  fees  that  may  be  due  to  him,  it  shall  be  the  duty  of 
the  clerk  to  enter  the  case  dismissed,  and  to  give  to  either  party  re- 
questing it  a  copy  of  the  agreement  filed ;  but  no  mandate  or  other 
process  shall  issue  without  an  order  of  the  court. 

29.   Supersedeas. 
Supersedeas  bonds  in  the  circuit  courts  must  be  taken,  with  good 
and  sufficient  security,  that  the  plaintiff  in  °rror  or  appellant  shall 


702  APPENDIX. 

prosecute  his  writ  or  appeal  to  effect,  and  answer  all  damages  and 
costs  if  he  fail  to  make  his  plea  good.  Such  indemnity,  where  the 
judgment  or  decree  is  for  the  recovery  of  money  not  otherwise  se- 
cured, must  be  for  the  whole  amount  of  the  judgment  or  decree, 
including  just  damages  for  delay,  and  costs  and  interest  on  the 
appeal ;  but  in  all  suits  where  the  property  in  controversy  neces- 
sarily follows  the  event  of  the  suit,  as  in  real  actions,  replevin,  and 
in  suits  on  mortgages,  or  where  the  property  is  in  the  custody  of  the 
marshal  under  admiralty  process,  as  in  case  of  capture  or  seizure,  or 
where  the  proceeds  thereof,  or  a  bond  for  the  value  thereof,  is  in  the 
custody  or  control  of  the  court,  indemnity  in  all  such  cases  is  only 
required  in  an  amount  sufficient  to  secure  the  sum  recovered  for  the 
use  and  detention  of  the  property,  and  the  costs  of  the  suit,  and  just 
damages  for  delay,  and  costs  and  interest  on  the  appeal. 

30.  Eehearing. 
A  petition  for  rehearing  after  judgment  can  be  presented  only  at 
the  term  at  which  judgment  is  entered,  unless  by  special  leave 
granted  during  the  term  ;  and  must  be  printed  and  briefly  and 
distinctly  state  its  grounds,  and  be  supported  by  certificate  of 
counsel ;  and  will  not  be  granted,  or  permitted  to  be  argued,  un- 
less a  justice  who  concurred  in  the  judgment  desires  it,  and  a 
majority  of  the  court  so  determines. 

31.   Form  of  printed  Eecords  and  Briefs. 
All   records,   arguments,  and  briefs  printed   for   the   use   of   the 
court  must  be  in  such  form  and  size  that  they  can  be  conveniently 
bound  together,  so  as  to  make  an  ordinary  octavo  volume. 

32.  Writs  of  Error  and  Appeals  under  section  5  of  the  Act 
of  March  3d,  1875. 

1.  Writs  of  error  and  citations  under  section  5  of  the  act  of  March 
3d,  1875,  "  to  determine  the  jurisdiction  of  the  circuit  courts  of  the 
United  States,  and  to  regulate  the  removal  of  causes  from  the  State 
courts,  and  for  other  purposes,"  for  the  review  of  orders  of  the  cir- 
cuit courts  dismissing  suits,  or  remanding  suits  to  a  State  court,  must 
be  made  returnable  within  thirty  days  after  date,  and  be  served  before 
the  return-day. 

2.  In  all  cases  where  writ  of  error  or  appeal  is  brought  to  this 
court  under  the  provisions  of  that  act,  it  shall  be  the  duty  of  the 
plaintiff  in  error  or  the  appellant  to  docket  the  case  and  file  the 
record  in  this  court  within  thirty-six  days  after  the  date  of  the  writ 
of  error,  or  the  taking  of  the  appeal,  if  there  shall  be  a  term  of  the 


RULES    OF   THE   SUPEEME   COURT   OF   THE   UNITED    STATES.      703 

court  pending  at  that  time,  and  if  not,  then  during  the  first  six  days 
of  the  next  term.  If  default  be  made  in  this  particular,  proceedings 
to  docket  and  dismiss  may  be  had  as  in  other  cases. 

3.  All  such  cases  will  be  advanced  on  motion.  The  motion  may  be 
made  ex  parte.  If  granted,  the  party  on  whose  motion  the  case  shall 
have  been  advanced  may  have  the  case  submitted  on  printed  briefs, 
on  serving,  with  a  copy  of  his  brief,  on  the  adverse  party,  a  notice  of 
intention  to  submit,  such  as  is  required  by  Rule  6  to  be  given  upon 
motions  to  dismiss  writs  of  error  and  appeals. 

4.  As  soon  as  such  a  case  is  docketed  and  advanced,  the  record  shall 
be  printed,  unless  the  parties  stipulate  to  the  contrary,  and  file  their 
stipulation  with  the  clerk.    - 

5.  In  all  cases  where  a  period  of  thirty  days  is  included  in  the 
times  fixed  by  this  rule,  it  shall  be  extended  to  sixty  days  in  writs  of 
error  and  appeals  from  California,  Oregon,  or  Nevada. 

33.  Models,  Diagrams,  and  Exhibits  of  Material. 

1.  Models,  diagrams,  and  exhibits  of  material  forming  part  of  the 
evidence  taken  in  the  court  below,  in  any  case  pending  in  this  court, 
on  writ  of  error  or  appeal,  shall  be  placed  in  the  custody  of  the 
marshal  of  this  court  at  least  one  month  before  the  case  is  heard  or 
submitted. 

2.  All  models,  diagrams,  and  exhibits  of  material,  placed  in  the  cus- 
tody of  the  marshal  for  the  inspection  of  the  court  on  the  hearing  of 
a  case,  must  be  taken  away  by  the  parties  within  one  month  after  the 
case  is  decided.  When  this  is  not  done,  it  shall  be  the  duty  of  the 
marshal  to  notify  the  counsel  in  the  case,  by  mail  or  otherwise,  of 
the  requirements  of  this  rule  ;  and  if  the  articles  are  not  removed 
within  a  reasonable  time  after  the  notice  is  given,  he  shall  destroy 
them,  or  make  such  other  disposition  of  them  as  to  him  may 
seem  best. 

AMENDMENT  TO   EULES 

IN  THE   SUPREME   COURT  OF  THE   UNITED   STATES, 

October  Term,  1885. 

Ordered,  That  the  following  regulations  be  established  under  sec- 
tion 705  of  the  Revised  Statutes  : 

Rule  34.   Custody  of  Prisoners  on  Habeas  Corpus. 
1.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
declining  to  grant  the  writ  of  habeas  corpus,  the  custody  of  the  pris- 
oner shall  not  be  disturbed. 


704  APPENDIX. 

2.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
discharging  the  writ  after  it  has  been  issued,  the  prisoner  shall  be  re- 
manded to  the  custody  from  which  he  was  taken  by  the  writ,  or  shall, 
for  good  cause  shown,  be  detained  in  custody  of  the  court  or  judge,  or 
be  enlarged  upon  recognizance,  as  hereinafter  provided. 

3.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
discharging  the  prisoner,  he  shall  be  enlarged  upon  recognizance,  with 
surety,  for  appearance  to  answer  the  judgment  of  the  appellate  court, 
except  where,  for  special  reasons,  sureties  ought  not  to  be  required. 

[Promulgated  March  29,  1886;  and  as  amended,  May  10,  1886.] 


INDEX. 


[PREPARED  BY  MR.  MORRIS  COOPER  OF  THE  NEW  YORK  BAR.] 


A. 

AARON  BURR, 

subpoena  duces  tecum  against  Thomas  Jefferson  issued  on 

trial  of §  98    p.  159 

ABATEMENT, 

pleas  in §  125     p.  190 

cured  by  filing  bill  of  revivor §  174     p.  255 

what  causes  abatement  of  suits  in  equity    ....     §  174     pp.  255-250 

effect  of §  175    pp.  257-258 

common-law  procedure  respecting      .     .     .        §360  p.  530;  §  363  p.  553 
of  appeal  or  writ  of  error  in  Supreme  Court  of  United 
States,  for  failure  to  make  representatives  of  deceased 

persons  parties §  397    p.  600 

See  also  Pleas. 
ABATEMENT   AND   REVIVOR, 

of  suits  in  equity §  373     pp.  553-551 

of  actions  at  law §  360  p.  530;  §  373  p.  553 

ABSENT   PARTY, 

when  interest  of,  in  controversy  is  very  small       ....       §  57     p.  103 
ABSOLUTE   DECREE.     See  Decrees. 
ACCIDENT, 

as  a  subject  of  relief  in  equity      .     .     • §  2     p.  3 

ACCOUNT, 

when  opened  by  equity §  11     p.  15 

bill  for,  what  to  contain §  84     p.  139 

discovery  in  bill  demanding  an §  148     p.  219 

cross-bills  need  not  be  filed  in  certain  actions  for  an     .     .     §  171     p.  247 
of  receiver    .    §  11  p.  141 ;  §  246  p.  362  ;  §  250  p.  373;  §  257  pp.  383-384 

of  receiver,  master  passing §  254    p.  379 

reference  to  master  to  take §300     p.  446 

in  which  form  to  be  brought  before  master §311     p.  458 

errors  in  master's  statement  of §  315     p.  463 

decrees  for,  should  specify  the  time  from  which  the  ac- 
count is  to  be  taken §  325     p.  476 

45 


706  INDEX. 

ACCOUNTING, 

of  bailiffs §  11     p.  14 

merchants §  11     p.  14 

trustees §  11     p.  14 

guardians §  11     p.  14 

receivers  ...       §  11  p.  14  ;  §  24G  p.  362  ;  §  250  p.  373;  §  254  p.  379; 

§  257  pp.  383-384;  §  300  p.  446 

bill  for §  11  p.  14-15 

matter  in  dispute  in  suit  for §  16     p.  24 

when  stockholders  are  necessary  parties   to  suit  for  an, 

against  corporation §  45     p.  88 

suit  for,  by  partner,  who  necessary  parties  to §  52     p   96 

between  partners,  necessary  parties  to §  53     p.  99 

decree  for,  should  contain  a  submission  by  the  plaintiff  to 

account §  321     p.  470 

ACKNOWLEDGMENT, 

want  of,  whether  invalidating  bond  given  on  removal  of 

cause §  385    p.  574 

ACQUIESCENCE, 

with  decree,  not  a  waiver  of  right  to  bring  appeal  or  writ 

of  error §  397     p.  601 

ACTIONS, 

survival  of §  373     pp.  553-554 

ACTION   AT   LAW, 

when  not  enjoined §  12     p.  18 

ACTS, 

of  State  and  Territorial  legislatures,  introducing  in  evidence     §  268    p.  404 
See  Statutes. 

ADDRESS, 

in  bills,  rules  relative  to,  and  form  of §    66     pp.  112-113 

ADEQUATE   REMEDY    AT   LAW. 

See  Remedy  at  Law. 

ADJOURNMENT, 

of  hearing  on  appeal  pending  certiorari  for  diminution  of 

record §  403    p   610 

See  also  Postponement. 

ADJUSTMENT, 

of  liability,  as  a  subject  of  jurisdiction  in  equity      ...  §  2     p.  4 

ADMINISTRATION, 

citizenship  of,  as  affecting  jurisdiction §  18     p.  26 

necessary  parties  to  bills  in  equitv,  when  right  of,  is  in  dis- 
pute        §  58     p.  103 

ADMINISTRATOR, 

suits  against §  9  P-  H 

suit  against,  by  next  of  kin §  11  p.  12 

capacity  of  foreign,  to  sue §  34  p.  68 

foreign,  when  cannot  be  sued §  35  p.  68 

when  to  be  made  a  party  to  suits  affecting  estate     ...  §  42  p.  82 


INDEX.  707 

ADMINISTRATOR  —  continued. 

when  necessary  parties  to  suits „         §  45     p.  85 

necessary  parties  in  suits  against §  52     p.  96 

evidence  in  actions  by  or  against §  274     p.  409 

abatement  and  revival  of  suits §  :J73     pp.  553-554 

ADMINISTRATOR'S   SURETIES, 

suit  against . §  11     p.  12 

ADMIRALTY, 

rules  of  evidence  in  cases  of  admiralty  jurisdiction  ...     §  264     p.  395 
ADMIRALTY   PROCESS, 

security  required  to  obtain  supersedeas  where  property  is 

in  custody  of  marshal  under §  402     p.  606 

ADMISSIONS, 

not  necessary  to  charge  specifically  in  bill  in  order  to  give 

in  evidence §  69     p.  117 

by  demurrer §  106  pp.  170-172 

and  denials  in  answer  independent  of  discovery  ...  §  146  pp.  215-216 

of  sufficiency  by  filing  replication §  158    p.  232 

See  also  Evidence. 
ADVANCING   APPEALS, 

on  calendar  of  Supreme  Court §  408     p.  620 

ADVICE, 

receiver  applying  to  court  for §  246     p.  362 

to  receivers §  248  pp.  368-369 

See  also  Instructions. 
AFFIDAVITS, 

to  bills,  when  required §  87     p.  112 

failure  to  support  bill  by,  in  certain  cases  demurrable  .     .     §  108     p.  176 

of  defendant  to  accompany  demurrer §  118     p.  183 

to  support  application  for  leave  to  amend §  168     p.  244 

necessary  to  support  an  ex  parte  application  for  an  injunc- 
tion to  restrain  the  infringement  of  a  patent    ....     §  216     p.  313 

upon  an  application  for  an  injunction §  232  pp.  331-303 

to  bill  of  costs §  337    p.  498 

to  show  value  of  matter  in  dispute  where  it  does  not  ap- 
pear of  record  ■ §  395     p.  596 

of  deposit  in  mail  of  notice  and  brief,  on  motion  to  dis- 
miss appeal  or  writ  of  error §  406     p.  617 

See  also  Evidence. 
AFFIRMANCE, 

motions  for §  406     p.  616 

by  Supreme  Court  of  judgment  appealed  from     ....     §  409     p.  623 
AFFIRMATION, 

iti  lieu  of  oath §  270     p.  406 

AFFIRMATIVE   PROMISE. 

injunction  to  restrain  violation  of  negative  promise,  though 
court  has  in  the  particular  case  no  power  to  compel  keep- 
ing of  affirmative  promise     §220     p  319 

AGENTS, 

making  parties  to  suits  against  principals §  43     p.  83 


708  INDEX. 

AGREEMENT, 

alternative  relief  in  action  affecting §  70    p.  118 

between  counsel  must  be  reduced  to  writing,  or  made  in 

open  court §  265     p.  396 

ALABAMA, 

judicial  districts  in §  22     p.  31 

divided  into  three  districts §  26     p.  35 

counties  and  times  and  places 
of  holding  court  therein  enu- 
merated      §  26  pp.  35-36 

statutory  limitations  of  jurisdiction  by  residence  in       .     .       note,     p.  58 
district  of,  included  within  fifth  circuit §  204     p.  295 

ALIENAGE, 

when  not  terminated §  19     p.  27 

ALIENATION    OF   PROPERTY, 

injunctions  to  restrain §  212  pp   305-306 

ALIEN   ENEMY, 

demurrer  for  being    .     .     .     „ §  108     p.  174 

ALIENS, 

controversy  between §  19     p.  26 

when  incapable  of  being  plaintiffs §§  28,  30     p.    64 

if  party  to  bill,  necessary  to  aver  citizenship  of  foreign 

State §  66     p.  113 

defendant,  when  cannot  remove  case  to  Circuit  Court .     .     §  383     p.  568 

ALIMONY, 

bill  to  collect §  11  pp.  13-14 

ALLEGATIONS, 

not  stated  positively,  demurrable §  108    p.  176 

ALLOWANCE, 

to  counsel  in  receiverships §  257     p.  384 

See  also  Costs. 

of  writs  of  error,  by  judge,  not  necessary §  399     p.  603 

See  also  Writs  of  Error  an~d  Appeals. 

ALTERATIONS, 

in  answer §  151     p.  ~~i 

ALTERNATIVE, 

bill  must  not  state  two  inconsistent  states  of  fact  and  ask 

relief  in  the §  70     p.  117 

when  relief  in  the  alternative  may  be  asked  for  .     ...       §  70     p.  117 

ALTERNATIVE   RELIEF, 

bill  praying §  83     p.  137 

AMBASSADORS, 

jurisdiction  of  cases  affecting §  3     p.  5 

original  jurisdiction  of  United  States  Supreme  Court  over      §  14  pp.  20-21 

AMENDMENT, 

to  bill  to  permit  other  parties  to  be  brought  in    ...     .         §  46     p.  89 
to  bill  on  objection  for  multifariousness  being  sustained  .       §  75     p.  127 


INDEX.  709 

AMENDMENT  —  continued. 

whether  bill  may  be   taken  ]>ro  confesso  for   failure  to 

answer §  103     p.  164 

of  demurrer §  llJ<      l'-l<:>> 

leave  to  mate,  when  granted  on  sustaining  demurrer      §  123  pp.  186-187 

to  replication §  157     p.  231 

in  general §  160    p.  234 

rest  in  discretion  of  court §  160     p.  234 

statutory  power  to  grant §  160     p.  234 

liberally  made  in  favor  of  States,  charities,  infants,  idiots, 

and  lunatics §  160    p.  234 

when  bills  can  be  amended §161  pp.  234-236 

form  and  effect  of  amendment  of  a  bill §  162  pp.  236-237 

what  amendments  to  bills  may  be  made §  103  pp.  237-239 

amendment  by  pleading  matters  subsequent  to  the  filing 

of  the  bill §  164  pp.  239-241 

proceedings  upon  an  amended  bill §  105     p.  241 

amendments  of  demurrers,  pleas,  and  replications    ...     §  166     p.  242 

answers §  167  pp.  242-244 

practice  in  obtaining  leave  to  amend §  1<j8  pp.  244-245 

rarely  allowed  to  bill  of  discovery §  281     p.  418 

which  may  be  disregarded  at  hearing §  299     p.  445 

of  pleading,  how  far  State  practice  respecting,  is  followed      §  360     p.  530 
of  judgments  by  courts  that  rendered  them     ....  §  379  pp.  501-562 

of  bond  given  on  removal  of  cause §  385     p.  574 

in  Supreme  Court  of  the  United  States §  391     p.  587 

of  petition,  after  removal  of  cause  to  Federal  court  ...     §  391     p.  587 
pleading,  "  "  "  "  "...     §  391     p.  587 

bond,  "  "  "  "  "...     §391     p.  587 

writ  of  error §  399     p.  603 

of  injunction  order  pending  appeal §  402  pp.  600-007 

decree  by  Supreme  Court  after  decision §  409     p.  623 

See  also  Correction  of  Decree  otherwise  than  by  Appeal. 
AMENDMENTS    TO   CONSTITUTION, 

seventh §  4     p.  6 

eleventh §  3  p.  5;  §  37  pp.  71-77;  §  38  p.  77 

fourteenth  .  . ' §  15  p.  22 

AMOUNT   IN    CONTROVERSY, 

that  it  is  not  large  enough  to  give  court  jurisdiction,  a 

ground  of  demurrer §  108     p.  175 

See  Matter  in  Dispute;  also  Value. 

ANCILLARY  JURISDICTION. 

See  Jurisdiction. 

ANCILLARY   RECEIVERS, 

defined,  principles  regulating  appointment  of       .     .      §  242     pp.  346-317 

ANOMALOUS    PLEA, 

defined §  124     p.  189 

ANOTHER   SUIT   PENDING, 

objection  of,  can  be  raised  by  demurrer §  108     p.  176 

subject  of  plea  in  defense §  129  pp.  193-190 


710  INDEX. 

ANSWER, 

a  mode  of  objecting  to  want  of  parties §  61     pp.  105-106 

exceptions  for  impertinence  not  to  be  taken  after     .     .     .       §  US     p.  116 
as  a  mode  of  objecting  to  multifariousness  in  bills  ...       §  75    p.  126 

waiving,  in  the  oath §  81     p.  138 

as  evidence §  84     p.  138 

to  bill  without  objection  to  want  of  signature,  a  waiver    .       §  86     p.  141 

demurrer  cannot  be  filed  to §  105     p.  170 

defendant  may  demur  to  discovery  if  his  answer  subjects 

him  to  a  pain,  penalty,  or  forfeiture §  109     p.  177 

objections  which  can  be  taken  by §  109     p.  178 

when  to  be  filed §  111  pp.  178-171) 

with  pleas §  137  pp.  202-204 

filing  after  a  hearing  upon  plea §  142  pp.  209-210 

when  bill  may  be  amended  before §  164     p.  240 

amendment  of §  167  pp.  242-244 

irregular  practice  to  unite  with  cross-bill  in  same  pleading    §  172     p.  252 

to  supplemental  bill §  189     p.  275 

losing  right  to  demur  to  petition  for  intervention  by  in- 
terposing an  answer §  202     p.  292 

adverse  parties  may  file  answer  denying  the  fact  stated  in 

the  petition,  or  setting  up  other  facts  in  avoidance    .     .     §  202     p.  293 

when  receiver  may  be  appointed  before §  252     p.  377 

effect  of  consent  to  extend  time  to  answer,  on  time  to  re- 
move cause §  385    p.  575 

removal  of  cause  after §  385    p.  575 

may  be  treated  as  an  amendment  to  a  petition,  after  re- 
moval of  cause  to  Federal  court §  391     p.  587 

ANSAVERS  AND  DISCLAIMERS, 

pleading  defenses  in  an  answer §  144     pp.  211-212 

requisites  of  answer,  what  may  be  pleaded  in  .     .      §  144     pp.  211-212 

defenses  peculiar  to  patent  cases §  145     pp.  212-216 

impertinence  and  scandal  in §  147     pp.  216-217 

admissions  and  denials  independent  of  discovery     .      §  146     pp.  215-216 

discovery §  148     pp.  217-221 

when  to  be  filed §  149     p.  221 

proceedings  to  compel  answer §  149     p.  221 

frame  of  answer  and  formal  requisites §  150     pp.  221-223 

signature  and  oath  to  answer §  151     pp.  223-224 

motions  to  take  answers  off  the  file §  152     pp.  224-225 

exceptions  for  insufficiency §  153     pp.  225-227 

supplemental  answers §  154     p.  228 

disclaimers §  155     pp.  228-229 

form  of §  155     p.  229 

ANTICIPATED  DEFENSE, 

counter  averments  to  avoid §  76     p.  127 

APPEAL, 

demurrer  for  joinder  of  improper  parties  cannot  be  raised 

for  first  time  on §  62     p.  107 

objections  for  multifariousness  cannot  be  taken  for  the  first 

time  upon §  75     p.  126 


INDEX.  711 

APPEAL  —  continued. 

from  final  decree  taking  bill  pro  confesso §  104     p.  169 

right  of  new  parties  brought  in  by  intervention  to  ...     §  201     p.  -    - 

from  interlocutory  orders §  203     p.  294 

judge  of  Circuit  or  District  Court  has  no  power  to  enjoin 
the  enforcement  of  a  judgment  in  a  State  court  after  an 
appeal  to  the  United  States  Supreme  Court  and  a  super- 
sedeas   §  211     p.  303 

compensation  of  receivers  rarely  if  ever  increased  on    .     .     §  258     p.  385 
on  appeal  to  Supreme  Court,  no  objection  can  be  taken  to 
the  admissibility  of  evidence  not  objected  to  in  the  court 

below §  204     p.  395 

reviewing  verdict  of  jury  upon  an  issue §  305     p.  452 

from  what  decrees  appeal  lies §  318     p.  466 

does  not  lie  from  order  committing  for  contempt  ;  if  such 

order  is  void  habeas  corpus  will  lie §344     p.  oO. 

correction  of  decree  otherwise  than  by §350     p.  513 

in  habeas  corpus  proceedings §  368     pp.  548-549 

rulings  of  court  on  trial  where  jury  is  waived  by  consent, 

reviewable  on §  374     p.  554 

how  far  findings  reviewable  on  appeal,  when  special    .     .     §  374     p.  554 
cause  improperly  removed  to  Federal  court  may  be  re- 
manded even  after  appeal §393     p 

or  writ  of  error  to  decision  remanding  a  cause         ...     §  393     p.  59U 
See  also  Writs  of  Error  and  Appeals. 
APPEARANCE, 

generally,  waives  service  of  subpoena §    93    p.  150 

defined §    99     p.  161 

general,  special  and  gratis §    99     p.  161 

what  constitutes §  100     p.  161 

effect  of §  101     P-  162 

when  must  be  made §  102     pp.  162-103 

effect  upon  removal  of  cause,  of  want  of  general  appear- 
ance in  Federal  court §  391     p. 

general  appearance  in  Supreme  Court,  when  a  waiver  of 

failure  to  serve  citation  on  defendants  in  error      ...     §  399     p.  604 
APPLICATIONS  TO  THE  COURT. 

See  Interlocutory  Applications  and  Petitions. 
APPOINTMENT  OF   RECEIVER. 

See  Receiver. 
APPRAISEMENT, 

of  goods  taken  in  execution  under  writ  of  fieri  facias  .     .     §  3S0     p.  563 
ARBITRATORS, 

making  parties  to  suits  against  principals §  43     p.  S3 

ARGUMENT, 

setting  demurrer  down  for §  120     p.  184 

of  demurrer,  practice  upon §  121     pp.  18 1-1  85 

of  plea §140    pp.  20( 

of  motions,  practice  upon §  198     p    285 

notice  of,  how  fair  State  practice  respecting,  is  followed    .     §  300     p. 
of  appeals  and  writs  of  error  in  the  Supreme  Court      §  408    pp.  619-623 


712  INDEX. 

ARIZONA, 

time  within  which  cause  to  be  docketed  in  United  States 
Supreme  Court,  in  case  of  appeals  and  writs  of  error 
from §  403     p.  G08 

ARKANSAS, 

divided  into  two  districts §  26     p.  36 

counties  and  times  and  places  of 
holding  court  therein  enumer- 
ated   §  26     pp.  36-37 

districts  of,  included  within  Eighth  Circuit §  204     p.  295 

ARRANGEMENT, 

of  causes  of  action  not  ground  of  equitable  jurisdiction  .         §  12     p.  17 
ARREST, 

whether  injunction  can  be  obtained  to  restrain  illegal  .     .     §  215     p.  310 

of  prisoner  upon  a  second  warrant  pending  hearing  upon 

a  return  to  a  writ  of  habeas  corpus §  367     p.  547 

in  civil  actions,  when  permitted §  370     p.  550 

See  also  Ne  Exeat  Republica. 
ART, 

injunctions  to  restrain  publication  of  works  of   ....     §  206     p.  297 
ASSESSMENTS, 

bill  to  collect §  7     p.  9 

State  statutes  imposing,  upon  streets §  7    pp.  9-10 

ASSIGNEE, 

in  bankruptcy  or  insolvency  cannot  enforce  collateral  obli- 
gation given  creditor §  12     p.  18 

of   debentures  for    drawback  of    duties,   jurisdiction   of 

suits  by §    15    p.    22 

jurisdiction  of  suits  by §  24     pp.  32-33 

when  assignor  a  necessary  party  to  suit  by §  44     p.  84 

suits  by  and  against.     See  Parties. 
ASSIGNMENT, 

removal  of  cause  in  case  of  colorable §  384    p.  571 

ASSISTANCE, 

writ  of.     See  Enforcement  of  Decrees  and  Orders. 
ASSOCIATION, 

citizenship  of  members,  how  determined §  19     p.  26 

when  members  of  unincorporated,  are  necessary  parties  to 

suits  affecting §  45     p.  88 

AS  SOON  THEREAFTER  AS  COUNSEL  CAN  BE  HEARD, 

words  usually  employed  in  notices  of  motion §  197     p.  283 

ATTACHMENT, 

to  compel  answer §  149     p.  221 

of  property §  369     p.  549 

effect  upon,  of  removal  of  cause  to  Federal  court      ...     §  392     p.  588 

to  enforce  orders  and  decrees §  341     pp.  502-504 

See  also  Enforcement  of  Decrees  and  Orders. 
ATTENDANCE, 

of  witnesses §§  275-277    pp.  411-413 


INDEX.  713 

AT    THE    OPENING   OF    COURT, 

words  usually  employed  in  notices  of  motion  .....§  197     p.  283 

ATTORNEYS, 

making  parties  to  suits  against  principals §  43     p.  83 

See  also  Counsel. 

ATTORNEYS'   FEES, 

which  are  taxable  as  costs,  amounts §  330     pp.  481-483 

belong  to  party,  and  not  to  the  attorney §  330     p.  483 

ATTORNEY-GENERAL, 

allegations  in  bill  to  impeach  patent  or  other  grant  in  ac- 
tion not  brought  by §  76     p.  128 

motions  on  behalf  of §  197     p.  2S4 

injunctions  to  restrain  corporations  at  suit  of       ....     §  207     p.  298 
information  by,  to  enjoin  public  nuisance §  214     p.  308 

AUCTION, 

sales  at  public,  by  masters §  316     p.  4G3 

AUCTIONEERS, 

making  parties  to  suits  against  principals §  43     p.  83 

AVOIDING  DECREES, 

bills  for §  359    pp.  527-528 


B. 


BACON,   LORD   CHANCELLOR, 

labors  of,  in  widening  jurisdiction  of  courts  of  equity  .     .  §  1     p.  2 

practice  in  time  of,  respecting  the  granting  of  injunctions 

to  quiet  the  possession  before  heariug §  209     p.  302 

BAIL, 

admitting  prisoner  to,  pending  hearing  upon  a  return  to 

writ  of  habeas  corpus §  367     p.  547 

upon  enlarging  time  in  appellate  court  in  habeas  corpus     .     §  368     p.  519 
given  in  cause  prior  to  removal  to  Federal  court,  effect 

of  removal  on  same §  392    p.  58S 

on  allowance  of  writ  of  error,  in  Circuit  Court  to  review 

conviction  had  in  District  Court     ........§  404     p.  612 

BAILIFF'S  ACCOUNTING §  11    p.  14 

BALANCE, 

decree  for,  in  foreclosure  of  mortgage §  325     p.  476 

BANK, 

of  what  State  national  is  regarded  a  citizen §  19     p.  27 

appointment  of  receiver  of  property  of  national  ....     §  240     p.  344 
BANKING   ASSOCIATION, 

introducing  in  evidence  certificate  of  organization  of  nat- 
ional     §  268    p.  399 

BANKRUPT, 

when  necessary  party  to  suit  by  or  against  assignee      .     .         §  15    p.  86 


714  INDEX. 

BANKRUPTCY, 

jurisdiction  of  District  Courts  of  matters  and  proceedings 

in §  25     p.  31 

injunction  staying  proceedings  in  other  courts  authorized 

by  a  law  relating  to  proceedings  in §  211     p.  303 

BE  AMES, 

work  of,  on  pleas  referred  to  in  discussing  subject  of  nega- 
tive pleas §  121     p.  190 

on  policy  of  interposing  pleas §  113     p.  210 

BELIEF, 

stating  facts  upon  information  and,  in  bill      .....       §  67     p.  Ill 
BENEFICIARY, 

under  trust,  jurisdiction  of  equity  over §  2     p.  3 

bill  by §  11    p.  13 

when  necessary  parties  to  suits  affecting  trust  property     .  §  15     p.  86 

allowing  to  intervene  in  suits  affecting  trust  property  .     .     §  201     p.  291 
See  also  Cestui  Que  Trust. 

BIDS, 

at  masters'  sales §  316     p.  161 

BIGAMY, 

writ  of  error  to  review  conviction  of  bigamy  in  Supreme 

Court  of  Utah " §  391    p.  593 

BILL, 

creditor's  bill §  2     p.  1 

for  examination  of  witnesses  abroad §  2     p.  1 

for  injunction §  2     p.  1 

of  discovery .     .  §  2     p.  1 

to  compel  cancellation  of  documents §  2     p.  1 

to  compel  execution  of  instrument §  2     p.  1 

to  perpetuate  testimony §  2     p.  1 

to  prevent  claim  on  title §  2     p.  1 

for  cancellation  of  usurious  securities §  6     p.  9 

to  set  aside  will  for  fraud §  6     p.  9 

to  quiet  title  to  land,  State  statute  authorizing §  7     p.  9 

to  set  aside  probate  of  will §  7     p.  9 

against  executors  and  administrators §  9     p.  11 

to   set  aside   or  stay  proceedings  under  judgment  of   State 

court §  9     p.  11 

by  legatee  against  executors §11     p.  12 

by  married  woman §  11     p.  12 

by  municipal  corporation  to  enjoin  sale  of  property  in  exe- 
cution   §  11     p.  12 

by  next  of  kin  against  administrator §  11     p.  12 

by  United  States  to  enforce  priority  of  payment      .     .     .  §11     p   12 

by  United  States  to  cancel  land  patent §  11     p.  12 

against  debtor  of  trust  estate §  1 1     p.  13 

against  trustee •  §  11     p.  13 

by  bondholder §  11     p.  13 

by  municipal  bondholder .  §  1 1     p.  13 

by  stockholder §  11     p.  13 


INDEX.  715 

BILL  —  continued. 

for  specific  performance  of  contract  for  sale  of  corporate 

stock §  11    p.  13 

to  cancel  marriage  contract §  11     p.  13' 

to  reform  instrument §  1 1     p.  13 

to  set  aside  contract  entered  into  while  intoxicated       .  §  11     p.  13 

to  set  aside  contract  obtained  by  fraud §  11     p.  13 

to  collect  alimony §  11     pp.  1:3-14 

to  enforce  decree §  11     pp.  13-14 

to  set  aside  judgment §  11     p.  14 

for  accounting §  11     pp.  14-15 

to  quiet  possession  under  land  patent §  11     p.  15 

against  President  of  United  States §  12     p.  15 

by  coupon  holder  ..." §  12     p.  16 

by  State §  12     p.  16 

by  taxpayer §  12     p.  16 

to  compel  levy  of  tax §  12     p.  16 

to  obtain  possession  of  personal  property ,•  .         §  12     p.  16 

to  obtain  possession  of  real  property §  12     p.  16 

to  quiet  title §  12     p.  16 

to  enjoin  libels,  when  sustained §  12     p.  17 

for  reformation  of  policy,  when  ancillary §  21     p.  28 

to  set  aside  judgment  or  decree  for  fraud    .     .     §  12     p.  18;  §  21     p.  29; 

§  358    pp.  526-527 

•who  may  be  parties  to §§  28-41     pp.  04-80 

necessary  parties  to,  in  suit  against  surety  ;  guarantor      .       §  42     p.    82 
upon  ancestor's  covenants      .       §  42     p.    82 

informations  under  English  practice §  63     p.  108 

relator         "  "  "  §63     p.  108 

distinctions  between  information  and  bill §  63     p.  108 

effect  of  death  of  relator  upon  proceedings §  63     p.  108 

filing  of  bill  by  government  of  United  States       ....       §  63     p.  109 

information  by       "         "         "         §  63     p.  109 

informations  in  courts  of  some  of  the  States   .     .       §  63     p.  109 

definition  and  classification  of  bills §64    pp.  109-111 

into  original,  not  original, 
bills  in  the  nature  of 
original,  original  bills 
in  the  nature  of  bills 
not  original  .  .  .  .  §  61  p.  110 
when  court  will  take  jurisdiction  of  bills  not  original  .  .  §  64  p.  Ill 
ordinary  kind,  which  seek  relief  concerning  right,  claimed 

by  plaintiff  in  opposition  to  defendant §  64     p.  Ill 

frame  of  bill  generally  considered,  clauses  enumerated      .       §  65     p.  Ill 
common  confederacy  clause  no  longer  deemed  essential     .     §  65     p.  Ill; 

§  79     p.  133 
charging  part  "  "  "  .     §65     p.  Ill; 

§80     p.  131 
jurisdiction  clause  "  "         §  65    p.  Ill;  §  81     p.  134 

that  plaintiff  is  without  remedy  at  law,  statement  of,  no 

longer  necessary §  05     p.  112;  §81     p.  131 


716  INDEX. 

BILL  —  continued. 

address  and  introduction,  rules  relative  to,  and  form  of     §  66  pp.  112-113 
taking  advantage  of   omission  as  to  residence  of  parties 

and  other  defects  in  address  and  introduction       ...       §  66     p.  113 

narrative  or  stating  part  of  bill §  67  pp.  113-114 

drawn  without  reference 

to  technical  rules  .     .  §  67     p.  114 
to  contain  all  facts  essen- 
tial to  plain tiff's  cause 

of  action §  67    p.  1 14 

scandal  and  impertinence §  68  pp.  114-116 

certainty .       §  69  pp.  116-117 

not  necessary  to  charge  admissions  specifically 

in  order  to  give  them  in  evidence    ....  §  69     p.  117 

inconsistency  and  bills  with  a  double  aspect      .     .     .     .  §  70  pp.  117-119 

asking  for  relief 
in  alternative, 

when  allowed  §  70     p.  117 

multifariousness,  in  general §  71  pp.  119-120 

defined §  71     p.  119 

by  misjoinder  of  plaintiffs §  72  pp.  120-122 

who  can  be  properly  united  as  plaintiffs      ...  §  72     p.  121 
privity  between  plaintiffs  usually  essential ;  excep- 
tions        §  72     p.  121 

by  misjoinder  of  defendants §  73  pp.  122-124 

without  misjoinder  of  parties §  74  pp.  124-126 

objections  for  multifariousness §  75  pp.  126-127 

special  provisions  of  the  Federal  equity  rules  and  prac- 
tice as  to  bills •     -  §  76  pp.  127-128 

plaintiff  may  by  counter  averments  avoid  anticipated 

defense §  76     p.  127 

but  special  replications  not  allowed §  76     p.  127 

reason  for  omitting  proper  parties  to  be  averred     .     .  §  76     p.  127 
suits  by  stockholders  and  other  persons  founded  on 

rights  assertable  by  corporation §  76     p.  127 

allegations  as  to  jurisdiction §  76     p.  128 

allegations  as  to  value  of  matter  in  dispute  ....  §  76     p.  128 

allegations  in  bills  to  impeach  patent  or  other  grant  .  §  76     p.  128 

allegations  as  to  permission  from  attorney-general  §  76     p.  128 

bills  to  enjoin  the  infringement  of  patents      .     .     .     .  §  77  pp.  129-131 

general  rules  of  equity  pleading  as  to  bills      .     .     .     .  §  78  pp.  131-133 

interrogatory  clause,  rules  pertaining  to §  82     p.  13o 

prayer  for  relief               "         "         " §  83  pp.  136-137 

form  of §83  pp.  136-137 

waivers  and  offers  in §  84  pp.  137-140 

prayer  of  process §  85  pp.  140-141 

what  to  contain §  85     p.  140 

signature §  86     p.  141 

affidavits  to,  when  required §  87     p.  142 

bills  of  interpleader,  who  may  file,  and  contents  of  .     .  §  88  pp.  142-146 

in  the  nature  of  interpleader §  89     p.  147 


INDEX.  717 

BILL  —  continued. 

bills  of  certiorari §  90     pp.  146-147 

when  may  be  amended §  101     p.  234 

■when  copy  of,  required  to  be  furnished §  161     p.  235 

injunction  not  prayed  for  in §  229     pp.  327-328 

to  perpetuate  testimony §  279     pp.  413-416 

to  take  testimony  de  bene  esse §  280     p.  416 

of  discovery §  281     pp.  416-418 

when  amended  may  be  disregarded  at  hearing     ....     §  299     p.  445 

dismissal  of,  upon  hearing §  300     p.  445 

without  hearing §§  291-295     pp.  434-440 

amendment  of,  see  Amendments. 

for  subjects  of,  see  Jurisdiction;  see  also  Cross-Bills;  Parties;  Taking 
Bills  Pro  Confesso  ;  Dismissing  Bills  otherwise  than  at  a 
Hearing;  Correction  of  Deckee  otherwise  tiian  by  Appeal. 

BILL   OF   COSTS.     See  Taxation. 

BILLS   OF   EXCEPTIONS, 

principles  relative  to §  377     pp.  559-560 

BILLS   OF   EXCHANGE, 

injunctions  to  restrain  negotiation  or  indorsement  of  .     .     §  210    p.  302 
transfers  of §  212     p.  305 

BILLS  OF  LADING, 

how  far  decisions  of  State  courts  relative  to,  are  binding 

upon  Federal  tribunals §  375     p.  557 

BILL   OF  PEACE, 

necessary  parties  to §  44     p.  84 

denned,  characteristics §  209     pp.  301,  302 

BILLS   OF   REVIEW, 

jurisdiction  of §  21     p.  28 

definition  and  characteristics  of §§  351-356     pp.  518-525 

BILLS  IN  THE  NATURE  OF  BILLS  OF  REVIEW  §  357     pp.  525-526 

BILLS  OF   REVIVOR, 

by  what  acts  suits  are  abated §  174    pp.  255-256 

effect  of  abatement §  175     pp.  257-258 

when  a  suit  may  be  revived,  and  effect  of  revivor    .     §  176    pp.  258-259 

who  may  revive  a  suit §  177     pp.  259-260 

manner  of  revivor,  in  general §  178     pp.  260-261 

definition  and  parties  to  bills  of  revivor      .     .     .     .     §  179     pp.  261-262 

frame  of,  and  requisites §  180     pp.  262-263 

proceedings  upon §  181     pp.  263-264 

bills  in  the  nature  of  bills  of  revivor  in  general  .     .     §  1 S2     pp.  266-267 

frame  of,  and  proceedings  thereupon  .     .     .     .     §  1S3     pp.  207-268 

bills  of  revivor  and  supplement,  definition  and  requisites        §  184     p.  208 

supplemental  bills  in  the  nature  of  bills  of  revivor  .     §  185     pp.  20S-2G9 

what  renders  a  suit  defective §  180     pp.  209-270 

supplemental  bills §  1S7     pp.  270-272 

parties  and  frame  of §  1S8     pp.  272-273 

proceedings  upon §  1S9     pp.  273-276 

bills  hi  the  nature  of  supplemental  bills,  in  general       §  190    pp.  276-277 

frame  and  requisites  of §  191     p.  277 

proceedings  upon §  192    pp.  277-278 


718  INDEX. 

BILLS   OF   REVIVOR   AND   SUPPLEMENT. 
See  Bills  of  Revivor. 
BILLINGS,   JUDGE, 

on  power  of  courts  to  enjoin  criminal  proceedings,  or  mat- 
ters in  their  nature  criminal §  211     p.  304 

BLIND   PERSON, 

how  to  verify  affidavit §  270    p.  40G 

BOND, 

when  required  upon  injunction  by  State  statute  ....  §  6     p.  9 

by  receiver §  256     p.  381 

filed  with  petition  for  removal  secures  right  to  costs     .     .     §  327     p.  480 
how  far  decisions  of  State  courts  relative  to  municipal 

bonds  are  binding  upon  Federal  tribunals §  375     p.  557 

on  removal  of  cause §  385     p.  572 

on  removal  of  cause  to  Federal  court,  amendment  of    .     .     §  391     p.  588 
given  in  a  cause  prior  to  removal  to  Federal  court,  effect 

of  removal  on  same §  392     p.  588 

See  also  Security  ;  Undertaking. 
BOND   ON   REPLEVIN, 

inability  to  give,  no  ground  of  equitable  relief     ....         §  12    p.  17 

BONDHOLDER, 

bill  by     .... §  11     p.  13 

suit  by,  against  State §  37     p.  76 

suits  by  plaintiff  on  behalf  of  himself  and  others  similarly 

situated §  47     p.  89 

when  trustees  of  railroad  mortgage  need  not  be  made  par- 
ties to  foreclosure  suit  by §  51     p.  95 

obtaining  injunction  in  suit  affecting  corporation    ...  §  207     p.  299 

of  corporations,  appointing  receivers  at  suit  of    .     ...  §  240    p.  344 

BOOKKEEPER, 

of  corporation,  when  might  be  made  party  to  suit  against 

corporation  under  English  practice §  43     p.  82 

BOOKS, 

introduction  of,  in  evidence §  268     pp.  398-406 

production  of,  on  trial §  372    p.  552 

BRADLEY,   JUSTICE, 

on  the  practice  of  taking  bills  pro  confesso      .     .     .     §104     pp.  165-168 

on  powers  of  receivers  of  railroads §  246     pp.  361-362 

on  compensation  of  receivers §  258     p.  385 

BREACH   OF   CONFIDENCE, 

defendant  may  demur  to  bill  if  his  answer  would  involve  a  §  109     p.  177 

BREACH   OF   CONTRACT, 

injunctions  to  prevent §  210     p.  302 

injunctions  to  prevent,  in  matters  not  affecting  land     §  220     pp.  318-319 

BREWER,   JUDGE, 

on  the  duties  of  receivers  of  railroads  operating  the  same  §  246    pp.  363-365 

BRIDGE, 

contract  to  build,  when  not  specifically  empowered  ...         §  12     p.  20 


INDEX.  719 

BRIEFS, 

to  be  filed  with  clerk,  and  furnished  to  counsel  on  oppo- 
site side §  408     p.  620 

what  to  contain §408    pp.  620-02 1 

See  also  State  of  Facts. 
BRINGING   ON   REFERENCE, 

before  master  . §  309     p.  455 

BRINGING   SUIT   TO   A   HEARING. 

See  Hearing. 
BURDEN  OF  PROOF, 

in  suits  or  informations  where  seizures  are  made  pursuant 
to  an  act  providing  for  or  regulating  collection  of  duties 
on  imports  or  tonnage §  268    p.  405 


CALENDAR, 

of  motions §  198     p.  286 

bringing  suit  to  a  hearing §  296     p.  441 

precedence  of  appeals  on §  408     p.  619 

CALIFORNIA, 

divided  into  two  districts §  26     p.  37 

counties  and  times  and  places  of 
holding  court  therein  enumer- 
ated             §  26    p.  37 

districts  of,  included  within  Ninth  Circuit §  204     p.  296 

time  within  which  cause  to  be  docketed  in  United  States 
Supreme    Court  in  case   of  appeals  or   writs   of  error 

from §  403    pp.  608-609 

CALVERT, 

quotation  from  work  of,  on  parties §  54     p.  102 

CAMPBELL,    LORD, 

description  by,  of  former  English  practice  of  bringing  mo- 
tions to  a  hearing §  198     p.  2S5 

CANCELLATION, 

of  instruments §  2     p.  4 

CAPACITY   TO    SUE, 

objection  to  want  of,  raised  by  plea §  127     p.  191 

CAPITAL   CRIME. 

See  Criminal  Prosecution. 
CAPITAL   PUNISHMENT, 

writ  of  error  in  cases  of §  394     p.  593 

See  Criminal  Prosecution  ;  Writs  of  Error  and  Appeals. 
CARRIER, 

receiver  of  railroad,  a  common  carrier §  250     p.  373 

how  far  decisions  of  State  courts  relative  to  common  car- 
riers are  binding  upon  Federal  tribunals §  375    p.  557 

See  also  Corporation. 


720  INDEX. 

CAUSE  PETITIONS, 

so-called  because  made  in  a  cause §  199    p.  288 

CERTAINTY, 

in  bills §  69    pp.  116-117 

bill  deficient  in,  demurrable §  108    p.  176 

CERTIFICATES, 

of  receivers §  247     p.  365-368 

exemplifying  books  and  papers  to  be  used  in  evidence  .     .     §  268     p.  404 

of  division  of  opinion §391     p.  594;  §  396     pp.  597-598 

clerk  to  authentication  of  record  on  appeal §  403     p.  607 

CERTIFICATE   OF   COUNSEL, 

to  accompany  all  demurrers §  118     p.  183 

must  support  plea §  136     p.  202 

CERTIFICATES   OF   INDEBTEDNESS, 

suits  by  holders  of,  on  behalf  of  others §  49     p.  92 

CERTIFICATION, 

by  District  Court,  of  question  of  general  importance,  —  for 
purposes  of  appeal §  394    p.  592 

CERTIORARI, 

bills  of,  practice  respecting §  90     pp.  146-147 

writs  of §  365    p.  540 

to  State  court  to  make  return  of  record,  after  removal  of 

cause  to  Federal  court §  390     p.  583 

for  a  diminution  of  record §  403     p.  610 

pending  writ  of,  for  diminution  of  the  record,  the  hearing 

of  the  cause  on  appeal  is  usually  adjourned §  403     p.  610 

CESTUI   QUE   TRUST, 

jurisdiction  over §  2     p.  3 

when  necessary  parties  to  suits  affecting  trust  property     .         §  45     p.  86 
See  also  Beneficiary. 

CHANCELLORS, 

length  of  foot,  the  ancient  measure  of  equity §  1     p.  1 

labors  of  the  early,  in  widening  jurisdiction  in  equity  ...  §  1  p.  1 
does  not  exercise  prerogative  of  sovereign  as  parens  jmtrice  §  5  p.  6 
this  prerogative  not  in  Federal  courts §  5    p.  6 

CHANCERY, 

rules  of  equity  founded  in  practice  of  High  Court  of  .  .  .  §  1  p.  1 
jurisdiction    in    equity    of    Federal    courts    generally    the 

same  as  that  in  the  English  court  of §  5     p.  6 

practice  in  High  Court  of,  adopted  by  rule  90  of  United 

States  Supreme  Court §  26     p.  57 

CHANGE   OF   RESIDENCE, 

purpose  of,  does  not  prevent  change  of  citizenship    ...         §  20     p.  27 

CHARGE, 

State  statute  limiting  powers  of  judge  to  comment  on  the 
facts  in  charge  to  jury,  or  directing  that  such  charge  be 

in  writing,  effect  of,  in  Federal  court §  374    p.  556 

when  trial  judge  may  comment  upon  the  facta      ....     §  374     p.  556 

general  exception  to,  when  unavailing §  377     p.  560 

exception  to  refusal  of  court  to  charge §  377    p.  560 


INDEX.  721 

CHARGING  PART, 

of  bill,  counter-averments  to  avoid   anticipated   defense 

formerly  included  in §  76     p.  127 

no  longer  necessary       .     .  * §  80    p.  134 

See  also  Bills. 
CHARITY, 

necessary  parties  to  suit  brought  by  one  entitled  to,  on  be- 
half of  himself  and  others  similarly  situated    ....         §  47     p.  90 

informations  filed  on  behalf  of §  63     p.  108 

liberal  amendments  in  favor  of §  160     p.  234 

CHARTERS, 

injunctions    to     restrain     corporations    from     violating 

their §  207     pp.  298-300 

party  whose  land  has  been  taken  by  corporation  under 
power  of  eminent  domain  may  obtain  injunction  for 
using  such  lands  for  purpose  not  allowed  by  company's 

charter §  207     p.  299 

CHATTEL, 

injunction  to  restrain  alienation  of  a  specific       ....     §  210     p.  302 
injunctions  to  prevent  sales  and  transfers  of         ....     §  212     p.  306 
CIRCUITS, 

enumerated  and  described §  204     pp.  295-296 

CIRCUIT  COURTS, 

original  jurisdiction  of §  15     pp.  21-23 

subjects  of,  enumerated      .     .       §  15     pp.  21-23 
special  limitation  upon  jurisdiction  for  Southern  District 

of  New  York §  23     p.  32 

territorial  jurisdiction  of,  and  terms  of  holding  ...      §  26     pp.  35-56 

rules  of  practice  promulgated  by §  27     pp.  56-57 

what  judges  may  grant  orders  in §  204     p.  295 

clerk's  fees  in §  331     pp.  484-488 

See  also  Costs. 

appeals  to,  in  habeas  corpus  proceedings §  368     p.  518 

have  no  power  to  enact  rules  regulating  the  taking  of  tes- 

t  timony §  372     p.  552 

jurisdiction  of,  in  condemnation  proceedings  to  acquire 

real  estate  for  United  States  Government §  381     p.  565 

proceedings  in,  after  removal  of  cause  to §  3S5    p.  572 

review  of  judgments  and  decrees  on  instance  side  of,  when 

deciding  causes  of  admiralty  and  maritime  jurisdiction     §  394     p.  591 
appeals  and  writs  of  error  from,  where  one  of  the  parties 

is  deacl §  397     p.  600 

writ  of  error  is  a  writ  of  the  Supreme  Court,  though  is- 
sued from  a  Circuit  Court §  399     p.  603 

review     by,     of    judgments    and     decrees     of     District 

Courts §368    p.  548;  §  104    pp.  610-612 

See  also  Removal  of  Causes  ;  Writs  of  Error  and  Afpeals. 
CITATION, 

to  defendants  in  error §  309     p.  603 

failure  to  serve,  when  ground  of  dismissing  case      ...     §  399     p.  60 1 

how  waived §  399     p.  604 

46 


722  INDEX. 

CITATION  —  continued. 

on  appeal,  when  unnecessary §  401     p.  605 

on  writ  of  error  issued  by  a  Circuit  Court  to  a  District 

Court §  404     p.  611 

on  writ  of  error  from  Supreme  Court  to  State  Court     .     .     §  405     p.  615 

CITIZENS, 
of  different  States,  jurisdiction  of   Federal  Courts  in  con- 
troversies between §  18     p.  26 

of  what  State  corporation  regarded  as  a §  19     p.  26 

"  "       national  bank      "         " §  19     p.  27 

of  District  of  Columbia §  19     p.  26 

of  what  State  a  corporation  is  presumed  to  be     .     .     .     .       §  60     p.  112 
if  party  desiring  to  intervene  in  a  suit  is  citizen  of  same 
State  as  one  of  the  defendants,  that  will  usually  not  de- 
prive the  court  of  jurisdiction §  201     p.  290 

CITIZENS   OF   THE   UNITED   STATES, 

suits  to  secure  the  rights  of  citizens  of  the  United  States  §  15     pp.  21-22 

CITIZENSHIP, 

how  determined §  19     pp.  26-27 

as  affecting  jurisdiction  of  Federal  courts       ....      §  19     pp.  26-27 

of  unincorporated  association §  19     p.  26 

not  determined  by  residence §  19     p.  27 

of  members  of  voluntary  association §  45     p.  88 

costs  when  action  is  dismissed  for  want  of  jurisdiction  for 

lack  of  difference  of  citizenship §  327     p.  480 

See  also  Removal  of  Causes  ;  Residence. 

CITIZENSHIP   OF   FORMAL   PARTIES, 

does  not  affect  jurisdiction §  18     p.  62 

CITY, 

bill  by,  to  establish  right  to  levy  duty §  49     p.  92 

See  also  Municipal  Corporation. 

CIVIL  LAW, 

source  of  equitable  practice  and  jurisprudence §  1     p.  1 

practice  of  taking  libels  pro  confesso §  104    p.  166 

CIVIL  RIGHTS, 

laws;   acts §  15    pp-  21-22 

CIVIL  RIGHTS  LAWS, 

practice  in  removal  of  cases  arising  under       ...      §  3S9     pp.  582-583 
writ  of  error  in  any  action  founded  upon §  394     p.  593 

CLAIMS, 

Court  of §  36    p.  70 

appeals  from  judgments  of  Court  of §  394     p.  592 

See  also  Court  of  Claims. 
certain  claims  preferred  out  of  funds  in  hands  of  receivers 

in  railroad  foreclosure  suits §  243     p.  354 

CLARENDON, 

labors  of,  in  widening  jurisdiction  of  courts  of  equity  ...        §  1     p.  2 


INDEX.,  723 

CLASS, 

suits  against  one  or  more  of  a,  proper  parties  in  .     .     .     §  48    pp.  90-91 
suits  by  or  against  one  or  more  persons  as  representatives 

of  a  class  claiming  a  common  right §  49     pp.  91-92 

suits  on  behalf  of  members  of.     See  also  Intervention. 

CLAUSES, 

of  bills.     See  Bills. 

CLERICAL  ERROR, 

See  also  Correction  of  Decree  otherwise  than  by  Appeal. 
CLERK, 

direction  to  enter  appearance §100     p.  101 

writs  of  error  directed  to §  399     p.  603 

approval  of  bond  on  writ'of  error  cannot  be  delegated  by 

judge  to  clerk §  400     p.  604 

undertaking  to,  for  fees,  by  plaintiff  in  error,  on  docket- 
ing cause  and  filing  record  in  United  States  Supreme 

Court §  403    p.  610 

no  security  for  fees  to  clerk  of  Supreme  Court  of  United 
States  required  in  writs  of  eiTor  in  criminal  prosecu- 
tions     §  403    p.  610 

CLERK'S  FEES, 

in  Supreme  Court §  331     p.  484 

in  Circuit  and  District  Courts §  331     pp.  484-489 

CLIENT, 

costs  as  between  solicitor  and §  336    pp.  497-498 

CLOSING, 

at  hearing §  297     p.  442 

argument  in  Supreme  Court „     .     .     .     .        408     p.  622 

CLOUD  UPON  TITLE, 

necessary  parties  in  suits  to  remove.     See  Parties  ;  Bill. 
CLUBS.     See  Voluntary  Associations. 
CO-DEFENDANT, 

answer  cannot  pray  relief  against §  144     p.  211 

whether  admissions  of  one  defendant  can  be  used  against .     §  265     p.  :j!)(i 
COLLECTOR, 

recovery  against,  execution §  3S0     p.  564 

COLLUSION, 

removal  of  receiver  because  original  appointment  was  ob- 
tained by §  259     p.  3S6 

bill  to  impeach  for §  358     p.  527 

remanding  cause  improperly  removed  to  Federal  court      .     §  393     p.  5S9 
COLLUSIVE  ASSIGNMENT, 

removal  of  cause  in  case  of §  384     p.  571 

COLLUSIVE  JURISDICTION, 

verification  as  to,   in  suit  affecting  rights  assertable  by 

corporation §    76     p.  127 

dismissal  for §  293     p.  430 


724  JENDEX. 

COLOR, 

witness  not  to  be  excluded  on  account  of  ......     §  274    p.  409 

COLORADO, 

constitutes  one  judicial  district §  26     p.  37 

times  and  places  of  holding 
court  therein  enumerated         §  26     p.  37 
districts  of,  included  within  Eighth  Circuit §  204     p.  295 

COLUMBIA. 

See  District  of  Columbia. 

COMBINATION, 

where  bill  specially  charges,  the  plea  to  such  part  must  be 

accompanied  by  answer §  137     p.  203 

COMMERCE, 

compliance  with  Inter- State  Commerce  Act  compellable  in 

certain  cases  by  injunction §  222     p.  321 

COMMERCIAL  LAW, 

what  principles  of,  applicable  in  Federal  courts  ....     §  375     p.  557 
COMMISSION, 

to  take  testimony.     See  Evidence. 
COMMISSION  OF  REBELLION, 

when  will  issue §  149     p.  221 

COMMISSIONERS, 

fees  of.     See  Costs. 
COMMITMENT, 

notice  of  motion  for  process  of,  to  be  served  personally     .     §  197     p.  283 

order  of §  344     pp.  506-507 

COMMITTEE, 

for  lunatic  on  suit  brought §  40     p.  79 

COMMON  CARRIER, 

receiver  of  railroad  a §  250     p.  373 

how  far  decisions  of  State  courts  relative  to,  are  binding 

upou  Federal  tribunals §  375     p.  557 

See  also  Carrier. 
COMMON  CONFEDERACY  CLAUSE, 

no  longer  necessary §  79     pp.  133-134 

form  of §    79     p.  134 

See  also  Bills. 
COMMON  INJUNCTIONS. 

See  Injunctions. 

COMMON    LAW, 

acts  upon  property,  not  persons §  1     p.  2 

origin  of §  1     P-  1 

source  of  equitable  practice  and  jurisprudence §  1     p.  1 

desire  to  soften  rigors  of,   the  foundation  of  equity  juris- 
prudence          §  x     P-  1 

distinction  between,  and  equity §  1     P-  2 

See  also  Practice  at  Common  Law. 
COMMON-LAW  PROCEDURE. 

See  Practice  at  Common  Law. 


INDEX.  725 

COMMON  RIGHT, 

suits  by  or  against  one  or  more  persons  as  representatives 
of  a §  49    pp.  91-92 

COMPELLING, 

witness  to  testify §  277     pp.  412-413 

COMPELLING  ANSWER, 

proceedings  for §  149     p.  221 

COMPENSATION, 

terms  as  to,  of  receiver,  imposed  by  court  on  appointment     §  243     p.  347 

when  receiver  obliged  to  act  without §  255    p.  381 

of  receivers        §  258     pp.  384-385 

of  master §  yi4     p.  461 

COMPETENCY, 

of  witnesses.     See  Evidence. 
COMPETITION, 

no  injunction  to  restrain  mere §  207    p.  300 

See  also  Monopoly. 
COMPLAINT, 

trial  judge  no  power  to  dismiss §  374    p.  556 

judgment  unconditionally  dismissing,  may  be  reviewed  by 

writ  of  error  from  Supreme  Court  to  State  Court      .     .     §  405     p.  G14 
See  also  Bills,  Parties,  Pleadings. 
COMPLETE   RELIEF.      See  Relief. 
COMPLIANCE, 

with  decree,  not  a  waiver  of  right  to  bring  appeal  or  error     §  397    p.  001 
COMPROMISE, 

dismissing  suit  on,  costs  and  fees §  331     p.  485 

COMPTROLLER  OF  THE  CURRENCY, 

appointment  of  receiver  by §  240     p.  344 

introducing  in  evidence  papers  executed  by §  268    p.  398 

COMPULSION, 

See  also  Duress. 
CONCLUSION. 

of  decree §  325    p.  476 

CONCLUSIONS   OF   LAW, 

not  to  be  stated  in  bills §69     p.  116 

not  to  be  stated  in  plea §124    p.  189 

not  to  be  stated  in  affidavits §  272     p.  408 

See  also  Facts. 

demurrer  does  not  admit §  106     pp.  171-172 

CONCURRENT  JURISDICTION, 

of  State  and  Circuit  Courts §  15     p.  21 

dismissal  of  bill  for  failure  of  plaintiff  to  elect  whether  he 

will  proceed  at  law  or  in  equity §  205     pp.  439-440 

CONDEMNATION   PROCEEDINGS, 

for  United  States  government,  practice  in       .     §  15     p.  22;  §  26     p.  35; 

§  3S1     p.  565 
CONDITIONS, 

upon  enforcement  of  rights  created  by  State  statutes   .     .  §  8     p.  10 


726  INDEX. 

CONDITIONAL  DECREE, 

sometimes  made  without  reference  to  pleadings,  for  the 

purpose  of  doing  equity §  84    p.  138 

See  also  Decrees. 
CONFORMITY, 

of  practice  in  Federal  courts  to  State §  3G0    p.  529 

CONGRESS, 

exemption  of  members  of,  from  service  of  process  .     .     .       §  98     p.  159 
when  writ  of  ne  exeat  republia  cannot  be  issued  against 

members  of §  2G2     p.  390 

introducing  in  evidence  extracts  from  the  journal  of  the 

Senate  or  of  the  House  of  Representatives §  268     p.  400 

recovery  against  officer  of  either  House  of ;  execution     §  380     pp.  564-565 
removal  to  Federal  court  of  action  against  person  on  ac- 
count of  anything  done  while  an  officer  of  either  House 

of §  383    p.  569 

practice   on  removal  of  suits   against   officers   of    either 

House  of §  388    pp.  580-582 

CONNECTICUT, 

constitutes  one  judicial  district §  26     p.  37 

.  times  and  places  of  hold- 
ing court  therein  enum- 
erated              §  26     p.  37 

the  districts  of,  included  within  the  Second  Circuit     .     .     §  204     p.  295 

CONSENT, 

to  relief  sought  as  affecting  necessary  parties      .     .     .  §  55    pp.  102-103 

decrees  entered  upon,  what  to  be  stated  in §  325     p.  474 

dismissal  of  suit  on,  costs  and  fees §  331    p.  485 

amendment  of  order  or  decree  entered  by §  351     p.  514 

a  case  of  which  the  Federal  court  could  not  otherwise 
take  jurisdiction  cannot  be  removed  from  State  court 

by §  383     p.  570 

effect  of  consent  to  extend  time  to  answer  on  time  to  re- 
move cause §  3S5    p.  575 

cause  which  was  properly  removed  to  Federal  court  can- 
not be  remanded  on  consent §  393     p.  589 

party  cannot  appeal  from  decree  which  does  not  injure 

him,  or  which  was  entered  upon  consent §  397     p.  601 

submission  of  cases  by §  408    p.  619 

CONSIDERATION, 

inadequacy  of §  11     p.  13 

CONSOLIDATION   OF   SUITS, 

common-law  procedure  respecting §  360     p.  529 

at  law  and  in  equity §  371    p.  550 

CONSPIRACY, 

not  grounds  for  bill  in  equity  to  recover  damages  alone     .         §  12     p.  17 

CONSTITUTION, 

as  affecting  jurisdiction  of  Federal  courts §  3     pp.  4-5 

distinctions  made  by,  between  law  and  equity     ....       §  4     pp.  5-0 


INDEX.  727 

CONSTITUTION  —  continued. 

suits  arising  under §  15  p.  21     §  17  p.  25 

to  redress  deprivation,  right,  privilege,  or  immunity 

secured  by §  15     p.  21 

liability  of  States  to  suits  by  private  persons  under      .      §  37     pp.  71-77 

suits  of  one  State  against  another,  under §38     pp.  77-78 

power  of  Congress  to  enact  law  allowing  in  a  single  spe- 
cified suit  against  a  corporation  chartered  by  it,  mat- 
ters and   defendants  to  be  joined,   in  a  manner  that 
would  otherwise  constitute  multifariousness     .     .     .     .       §  75     p.  128 
exemption  under,  of  certain  Federal  officers  from  process        §  98     p.  159 
proceedings  in  a   State  court  cannot  be  enjoined  merely 

because  taken  under  a  State  statute  repugnant  to  the    .     §  211     p.  303 
writs  of  error,  in  any  case,  in  Circuit  or  District  Court, 
brought  on  account  of  the  deprivation  of  any  right  or 

privilege  secured  by  the §  394     p.  593 

review  by  writ  of  error,  of  decision  of  State  court  affecting     §  394     p.  501 
writs  of  error  to  State  courts  in  cases  affecting  the  ...     §  4l)5     p.  012 
See  also  Contract. 
CONSTITUTIONAL   LAW, 

rulings  involving,  upon  hearing §  298     pp.  443-444 

State    statutes    regulating  procedure    in  Federal  courts, 

effect  of §  374    pp.  555-55G 

State  statutes  excludiug  corporations  from  doing  business 

within  their  limits §  383     p.  570 

CONSTRUCTION, 

of   State  statute  by  State  court,  how   far  binding  upon 

Federal  tribunals §  375     p.  558 

CONSTRUCTIVE   ADMISSIONS. 

See  Evidence. 

CONSTRUCTIVE   FRAUD, 

as  a  subject  of  equitable  jurisdiction §  2     p.  3 

CONSTRUCTIVE   TRUSTS, 

as  subjects  of  equitable  jurisdiction §  2     p.  3 

CONSULS, 

jurisdiction  of  cases  affecting §  3     pp.  J-5 

original  jurisdiction  of  United  States  Supreme  Court  in 

controversies  affecting §  14     pp.  20-21 

jurisdiction  of  District  Courts  in  suits  against     ....       §  25    p.    34 
introducing  in  evidence  copies  of  papers  in  the  office  of  a  .     §  208     p.  401 

CONTAGIOUS   DISEASE, 

provisions  as  to  holding  terms  of  United  States  Supreme 

Court  in  case  of §  26     p.  35 

CONTEMPT, 

notice  of  motion  for  process  of,  to  be  served  personally     .     §  197    p.  283 

party  in,  restricted  to  certain  motions §  197     p.  284 

receiving    fees  by  counsel   assigned  to   person  suing   in 

forma  pauperis,  a §  200     p.  289 

interference  with  receiver  a §  249     p.  371 


728  INDEX. 

CONTEMPT  —  continued. 

witness  refusing  to  testify,  a §  277     pp.  412-413 

common-law  procedure  respecting §  360     p.  529 

jurisdiction  of  Federal  courts  to  punish  acts  committed 

before  removal  of  cause §  392     p.  589 

See  also  Enforcement  of  Decrees  and  Orders. 
CONTEMPT   PROCEEDINGS, 

•when  amendment  of  a  bill  discharges    .     • §  162     p.  237 

CONTINUANCE, 

executor  or  administrator  becoming  party  entitled  to  a      .     §  373     p.  553 
See  also  Postponement. 

CONTRACT, 

relief  in  equity  against §  2     p.  3 

when  not  specifically  enforced §  12     p.  19 

to  build  bridge  when  not  specifically  enforced      ....         §  12     p.  20 

bills  to  contain  no  unnecessary  recitals  of §  68     p.  114 

alternative  relief  in  action  affecting §70     p.  118 

injunction  to  enforce   specific    performance  of,   affecting 

land §  208    pp.  300-301 

injunctions   to   compel   the  performance  or   prevent  the 

breach  of §  210     p.  302 

injunctions  to  compel  performance  or  prevent  breach  of, 

not  affecting  land §220    pp.  318-319 

injunction  to  restrain  defendant  from  violating  negative 

promise  contained  in  a §  220     p.  319 

with  receiver §  245     p.  360 

how  far  decisions  by  State  courts  upon  the  law  of  contracts 

by  corporations  are  binding  upon  the  Federal  courts       .     §  375     p.  557 
how  far  construction  of,  by  State  courts  will  be  followed  in 

Federal  tribunals §  375     p.  5.j8 

CONTRIBUTION, 

as  a  subject  of  jurisdiction  in  equity §  2     p.  4 

CONTRIBUTORY   NEGLIGENCE, 

how  far  decisions  of  State  courts  upon  law  of,  are  binding 

upon  the  Federal  tribunals §  375     p.  557 

CONTROVERSY, 

between  citizens  of  different  States §  17     p.  25 

how  determined       .     . §  18     p.  -6 

CONTUMACIOUS   WITNESS, 

compelling  to  testify §  277    pp.  412-413 

CONVERSION, 

of  property,  not  ground  for  bill  in  equity •       §  12     p.  17 

CONVICT, 

time  of,  to  bring  appeal  or  writ  of  error §  398     p.  602 

time  to  review  judgment  of  District  Court  by  Circuit  Court 

in  case  of  a §  404    p.  611 

See  also  Criminal  Prosecutions. 

CONVICTION. 

See  Criminal  Prosecutions. 


INDEX.  729 

COPY, 

of  bill,  when  to  be  furnished §  161     p.  235 

books,  records,  or  papers,  how  introduced  in  evidence     §  268     pp.  398-406 
whether  clerk  can  charge  for  copy  made  by  attorney      .     .    §  3-Jl     p.  4b6 

COPYRIGHT, 

effect  of  State  statutes  of  limitation  upon §  8     p.  10 

reached  by  creditor's  bill §  11     p.  14 

necessary  parties  to  suit  by  equitable  assignees  of      .     .     .  §  44     p.  S4 

bill  for  infringement  of,  what  to  contain §  8i     p.  139 

injunction  to  restrain  infringement  of    §210     p.  302;  §216  pp.  310-314; 

§217     pp.  314-317 
writs  of  error  to  review  decrees  concerning §  394     p.  593 

CORAM   NOBIS, 

writ  of  error,  when  allowed §  379     pp.  561-562 

CORPORATIONS, 

individual  liability  of  stockholders §  7     p.  9 

franchises  not  forfeited  by  bill  in  equity  filed  by  private 

citizen §  12     p.  19 

not  enjoined  at  suit  by  stranger  from  act  ultra  vires  ...        §  12     p.  19 

bill  by  stockholder  against §  12     pp.  19-20 

chartered     by    Congress,     jurisdiction-  of    suits     by    or 

against §  15    p.  21;  §  17    p.  25 

of  what  State  regarded  as  a  citizen    .     .     §  19     p.  26;  §66     pp.  112-113 

of  what  State  deemed  to  be  a  resiieut §22     p.  30 

jurisdiction  over  foreign §  22     p.  30 

who  to  be  made  parties  in  suit  against,  under  English 

practice §  43     p.  82 

when  stockholders  are  necessary  parties  to  suits  affecting  .         §  15     p.  88 
parties  to  suit  by  stockholder,  on  behalf  of  himself  and 

others  similarly  situated §  47     p.  89 

suing  stockholders  of,  as  representing  a  class §  48    p.  90 

if  party  to  bill,  law  of  State  creating  same  to  be  stated    §  66     pp.  112-113 
allegation  that  defendant  corporation  is  about  to  exceed 

its  powers  insufficient;  facts  to  be  shown §  69     p.  116 

alternative  relief  asked  for  in  suit  affecting  interest  in      .       §  70     p.  118 
power  of  Congress  to  pass  law  allowing,  in  a  single  specified 
suit  against  corporation  chartered  by  it,  matters  and  de- 
fendants to  be  joined  in  a  manner  that  would  otherwise 

constitute  multifariousness §  75     p.  126 

necessary  averments  in  suits  affecting  rights  assertable  by        §  76     p.  127 

suits  affecting,  when  to  be  verified §  87     p.  142 

service  of  subpoenas  on  §  95     pp.  153-155 

unincorporated    association     suing    as,    ground    of     de- 
murrer      §  108    p.  171 

discovery  cannot  be  required  of §118     p.  219 

but  can  be  required  to  answer  fully §148     p.  220 

answer  by §151     pp.  223-224 

allowing  stockholders  to  intervene  in  suits  affecting       .     .     §  201     p.  291 
injunctions  to  restrain  corporations  from  violating  their 
charters §  207     pp.  298-300 


730  INDEX. 

CORPORATIONS  —  continued. 

■when  receiver  of  property  of,  will  be  appointed     ....    §  240     p.  344 

suits  in  the  name  of,  by  receiver §  249     p.  369 

•whether  should  be  required  by  order  to  produce  books  and 

papers  on  trial §  372     p.  553 

how  far  decisions  of  State  courts  upon  the  law  of  contracts 

by  corporations  are  binding  upon  Federal  tribunals  .     .     §  375    p.  557 
agreement  by,  not  to  remove  into  Federal  court  any  suit 

brought  against  it  within  a  State §  383     p.  570 

exclusion   of,  by    State   from   doing   business   ■within   its 

limits §  383     p.  570 

See  also  Parties. 

CORPORATION   TRUSTS, 

Lord  Hatherly  on §  207     p.  298 

CORRECTION, 

of  judgments  by  courts  that  rendered  them      .     .     .     §  379     pp.  561-562 

CORRECTION  OF  DECREE  OTHERWISE  THAN  BY  APPEAL, 

in  general §  350     p.  513 

amendment  upon  petition  without  a  rehearing     .     .      §  351     pp.  513-514 

petitions  for  rehearing §  352     pp.  514-517 

practice  upon §  352     pp.  514-517 

supplemental  bills  in  the  nature  of  bills  of  review     .      §353     pp.  517-518 

bills  of  review §  354    pp.  518-520 

provisions  peculiar  to,  for  matters  of  fact 

newly  discovered §  355    pp.  520-521 

provisions  common  to  both  kinds  of  bills  of 

review ...      §  356     pp.  521-525 

bills  in  the  nature  of  bills  of  review  .      §  357     pp.  525-526 
bills  to  impeach  decrees  on  account  of  fraud  .     .     .      §  358     pp.  526-527 

collusion        ...     §  358     p.  527 

surprise     ....     §  358     p.  527 

bills  to  suspend  or  avoid  the  operation  of  decrees      .      §  359     pp.  527-528 

COSTS, 

making  persons  parties  to  suits  to  mulct  for §  43     p.  82 

in  cases  of  fraud,  persons  sometimes  allowed  to  be  made 

parties  only  to  be  mulcted  in  .... §  43     p.  83 

practice  of  taking  the,  according  to  length  of  bills,  the 

origin  of  the  common  confederacy  clause §  65     p.  112 

payment  of  as  condition  for  leave  to  amend,  on  objection 

for  multifariousness  being  sustained §  75     p.  127 

payment  of,  when  to  form  a  subject  of  prayer  for  relief      .  §  83     p.  137 

on  overruling  demurrer .§122     pp.  185-186 

sustaining         "  §123     pp.  186-187 

on  argument  of  plea §  140     p.  206 

dismissing  bill  with,  where  a  disclaimer  is  made  and  it 

appears    that   defendant   was    made  a    party  without 

reason §  155     p.  228 

amending  bill  as  of  course  without  payment  of  costs     .     .  §  161     p.  234 

suit  will  not  be  revived  merely  for §  176     p.  258 

making  of  separate  motions  discouraged  as  to       ....  §  197    p.  2S5 


INDEX.  731 

COSTS  —  continued. 

not  decreed  under  English  practice  against  pauper    .     .     .     §200     p.  290 

but  if  successful,  court  might  allow  him  full §  200     p.  290 

plaintiff  dismissing  his  bill  without  costs §291     p.  434 

practice  respecting,  on  references §  311     p.  456 

definition,  and  distinction   between  costs  at  law  and  in 

equity §  326     p.  477 

to  whom  costs  will  be  awarded §327     pp.  477-481 

classification  of  costs §  328     p.  481 

costs  between  party  and  party §329     p.  481 

attorney's  fees  enumerated,  and  amounts     ....     §  330     pp.  481-483 

belong  to  party     §  330     p.  483 
clerk's  fees,  Supreme  Court  of  the  United  States      ...     §  331     p.  484 

Circuit  and  District  Courts §  331     pp.  484-488 

marshal's  fees,  Supreme  Court  of  the  United  States       .     .     §  332     p.  489 

«      generally §  332     pp.  489-490 

witness'  fees §  303     pp.  491-494 

miscellaneous  disbursements §  334     pp.  494-496 

commissioner's  fees •     §  334     p.  496 

costs  out  of  a  fund §  335     pp.  496-497 

as  between  solicitor  and  client §  336     pp.  497-498 

taxation  of  costs §  337     p.  498 

security  for      «        §338     pp.  498-499 

common-law  procedure  respecting       §  360     p.  530 

upon   remand   of    cause  improperly  removed   to  Federal 

court " §393     pp.  589-590 

imposed  upon  a  remand §  393     p.  590 

security  for,  not  required  in  writs  of  error  in  criminal 

prosecutions §403     p.  610 

imposed  for  unnecessary  printing  of  record §  407     p.  619 

See  also  Security  for  Costs;  Terms. 
COTTENHAM,  LORD, 

opinion  of,  upon   giving  leave  to  amend  upon  allowing 

demurrer •     •     •    §  123     p.  1S7 

COUNSEL, 

signature  of,  to  bill §  86     p.  141 

failure  of,  to  sign  bill  demurrable §  108     p.  176 

certificate  of,  to  accompany  all  demurrers §  118     p.  183 

certificate  of,  must  support  plea §136     p.  202 

signature  of,  to  answer §151     pp.  223-224 

signature  of,  to  replication        §  159     p.  233 

signature  of,  to  amended  bill §  162     p.  236 

signature  of ,  to  cross-bill §172     p.  252 

signature  of,  to  bill  of  revivor §  ISO     p.  263 

as  soon  thereafter  as  counsel  can  be  heard,  words  usually 

employed  in  notices  of  motion §  497     p.  283 

when  to  sign  notice  of  motion         §  197     p.  2S3 

former   English   practice  respecting,  as  to  argument   of 

motions  by •     •     §  198     p  285 

assigning  under  English  practice  to  petitioner  suing  in 
forma  pauperis §  200    p.  289 


732  INDEX. 

COUNSEL  —  continued. 

when  fees  of,  required  to  be  paid  by  party  desiring  to  in- 
tervene       §  201     p.  290 

when  signature  of,  necessary  to  petition  for  intervention  .     §  202     p.  292 

whom  receiver  may  not  retain  as §  250     p.  373 

allowances  to,  in  receiverships §  257     p.  384 

agreements  between,  must  be  reduced  to  writing  or  made 

in  open  court §  265     p.  3'.>G 

presence  of,  at  taking  of  testimony §  284     p.  420 

on  hearing §  297     p.  441 

time  allowed,  on  argument  in  Supreme  Court      ....     §  408     p.  622 

COUNSEL   FEES, 

when  payable  out  of  fund  in  court §  336     pp.  497-498 

COUNTER  AVERMENTS, 

to  avoid  anticipated  defense §  76     p.  127 

COUNTERCLAIMS, 

when  included  in  estimation  of  matter  in  dispute    ...         §  16     p.  24 
See  also  Set-Off. 

COUPON, 

judgment  in  suit  to  collect §  395     p.  595 

COUPON    HOLDER, 

bill  by §  12     p.  16 

See  also  Stockholder. 

COURT, 

opening  of,  words  usually  employed  in  notices  of  motion     §  197     p.  283 
See  the  special  tribunal  desired. 

COURT  FUNDS, 

petition  for  payment  of §  199     p.  288 

COURT   OF  CLAIMS, 

equitable  jurisdiction  of §  12     p.  20  ;  §  36     p.  69 

procedure  in  certain  cases §  36     p.  70 

appeals  from  judgments  of §  394     p.  592 

by  whom  allowed §  401     p.  605 

upon  what  record  appeals  from  Court  of  Claims  are  heard     §  401     p.  605 
within  what  time  appeals  from,  may  be  submitted  on  con- 
sent       §  408     p.  619 

COVENANT, 

against  ancestor,  who  necessary  parties  to  a  bill  to  enforce         §  42     p.  82 
injunctions  to  enforce  specific  performance  of,  relative  to 

land §  208     pp.  300-301 

CRANWORTH,    LORD    CHANCELLOR, 

rule  of,  as  to  pleading  statute  of  frauds §  131     p.  198 

CREDITOR, 

of  estate,  not  to  be  joined  as  party  with  receiver     ...         §  45     p.  86 
of    insolvent    debtor,    when     necessary   parties  to    suit 

brought  by  or  against  insolvent  debtor §  45     p.  S6 

necessary  parties  to  suits  by  on  behalf  of  himself  and 

others  similarly  situated §  47     p.  90 

filing  bill  of  revivor §  177     p.  259 

of  corporation,  obtaining  injunction §  207     p.  299 

of  corporation,  appointment  of  receiver  in  suits  of    .     .     .     §  240     p.  344 


index.  733 

CREDITOR'S  BILL, 

as  a  subject  of  equity §  2     p.  4 

State  law  authorizing §  7     p.  10 

equitable  jurisdiction  over §  11     p.  13-14;  §12     p.  18 

CREW, 

necessary  parties  to  suit  brought  by  one  on  behalf  of  him- 
self aud  others  similarly  situated  to  recover  prize  mouey         §  47     p.  90 
See  also  Prize  Causes. 
CRIME. 

See  Criminal  Prosecution;  Habeas  Corpus. 

CRIMINAL   PROSECUTION, 

defendant  in  certain  cases  obliged  to  answer  a  charge  of 

fraud  which  might  subject  him  to  a §  109     p.  178 

injunctions  will  not  be  issued  to  stay    .     .     .  §  12     p.  17;  §  211     p.  304 
to  what  extent  common-law  procedure  followed  in  .     .     .     §  3G0     p.  530 
against  revenue  officer,  removal  to  Federal  court      ...     §  383     p.  568 
removal  to  Federal  court  generally,  of  criminal  prosecu- 
tions, where  accused  is  denied  rights  guaranteed  by  law 
providing  for  equal   rights   of  citizens  of  the   United 

States §  383    p.  569 

against   revenue  officers  and  officers  of  either  House  of 

Congress,  practice  upon  removal  to  Federal  court       §  388     pp.  580-582 
practice  on  removal  of   cases  arising  under  civil   rights 

laws §  389     pp.  582-583 

writ  of  error  to  Supreme  Court  of  United  States  in       .     .     §  394     p.  593 

time  to  take  out  writ  of  error  in §  398     p.  602 

no  security  required  upon  a  writ  of  error  to  a  judgment 
of  conviction  of  a  capital  crime  in  a  court  of  the  United 

States §  400     pp.  604-605 

no  security  required  to  clerk  of  Supreme  Court  of  United 

States  for  fees  on  writ  of  error  in §  403     p.  610 

review  in   Circuit  Court   of  convictions  had  in    District 

Courts §404     p.  611 

writs  of  error  in,  entitled  to  preference  on  hearing  ...     §  4U8     p.  619 

CROSS   APPEALS, 

argued  as  one  case §  408    p.  622 

CROSS-BILLS, 

in  the  nature  of  original  bills §  61     p.  110 

definition  and  origin  of §  109     p.  246 

when  should  be  filed §  170     pp.  246-217 

not  be  filed §  171     pp.  247-250 

frame  and  requisites  of §  172     pp.  250-252 

who  can  file §  172     p.  252 

proceedings  upon §173     pp.  252-2.">l 

may  be  sustained  as  a  petition  of  intervention     ....     §201     p.  291 
defendant  cannot   usually   move  for  appointment  of  re- 
ceiver before  decree  unless  he  has  filed  cross-bill  pray- 
ing for  one    §  253     p.  378 

as  to  right  to  appeal  from  decree  dismissing §  398    p.  602 


734 


INDEX. 


CURTIS,  JUDGE, 

ruling  of,  as  to  whether  judgment  of  foreign  courts  can  be 

pleaded  in  bar §  132     p.  198 

on  assessment  of  damages  under  injunction §  237     p.  339 

on  powers  of  Federal  courts  to  amend  writs  of  error    .     .     §  399     p.  G03 

CUSTODY   OF   COURT, 

when  it  begins §  9     p.  11 

when  it  terminates §  9     pp.  11-12 


D. 


DAMAGES, 

independently  of  other  equitable  relief,  not  usually  recov- 
ered by  bill  in  equity ' §  12  p.  17 

necessity  of  alleging  special,  to  obtain  injunction    ...  §  207  p.  300 

liability  of  receiver §  251  p.  375 

reference  to  master  to  assess §  300  p.  446 

costs  where  master  reports  in  favor  of  plaintiff  for  nominal 

damages §  327  p.  479 

DANIELL'S    CHANCERY   PRACTICE, 

quotation  from,  on  statement  of  causes  in  demurrer      .     .  §  115  p.  1S1 

form  of  oath,  quoted  from §  151  p.  224 

on  creditors  filing  bills  of  revivor §  177  p.  259 

practice  as  to  supplemental  bills  in  cases  of  personal  repre- 
sentatives    §  187  p.  271 

on  amending  petitions  for  intervention §  202  p.  293 

quotation  from,  on  receiver's  sureties    ......§  256  p.  383 

DATING, 

decree §  325  p.  474 

DEATH, 

of  relator,  effect  of,  upon  proceedings §  63     p.  108 

action  abating  by,  of  plaintiffs §174     p.  255 

of  party  pending  appeal  or  writ  of  error §  397     p.  599 

effect  of  death  of  party  before  time  allowed  for  taking  ap- 
peal or  bringing  writ  of  error  has  expired §  397     p.  599 

abatement  of  suits  by.     See    Abatement    and  Revivor  ;    Bills    of 
Revivor. 

DE  BENE   ESSE, 

issuing  subpoena  in  case  of  taking  .     . §275    p.  411 

bills  for  taking  testimony §  2S0     p.  416 

depositions  de  bene  esse  under  the  Acts  of  Congress  .     §  28G     pp.  424-426 

DEBENTURES, 

for  drawback  of  duties,  jurisdiction  of  suits  by  assignees 

of §15     p.  22 

DEBT, 

when  part  of  value  of  matter  in  controversy §  395     p.  596 

DEBTOR. 

See  Insolvent  Debtor. 


INDEX.  735 

DECEDENT'S  ESTATE, 

suits  relating  to §  11     pp.  12-14 

DECISIONS, 

how  pleaded §  08     p.  115 

rules  of,  upon  a  hearing §  298     p.  112 

weight  of ,  upon  a  hearing §298     p.  Ill' 

rules  of,  in  trials  at  common  law §  375     p.  556 

distinguished  from  decree  for  purposes  of  appeal  ...  §  398  p.  602 
of  appeals  and  writs  of  error,  by  Supreme  Court,  power 

of,  upon §  409     pp.  623-G24 

DECLARATORY   PART, 

of  decree §  325     p.  474 

DECREE, 

bill  to  enforce      .     .     . §  11    pp.  13-14 

jurisdiction  of  bill  to  set  aside  for  fraud §  21     p.  29 

who  bound  by §  42     p.  81 

to  provide  for  all  the  rights  which  different  persons  have 

in  the  matters  decided §  42     p.  81 

all  persons  should  be  made  parties  to  suit  who  are  inter- 
ested in §  42     p.  SI 

as  against  absent  parties,  or  such  as  are  without  the  juris- 
diction      §  50    pp.    92-93 

bills  impeaching,  upon  the  ground  of  fraud §  64     p.  110 

bills  to  suspend  operation  of,  on  special  circumstances  .  §  64  p.  110 
bills  to  avoid,  on  the  ground  of  matter  subsequent  ...  §  64  p.  110 
bills  to  obtain  a  judicial  construction  of  a  previous  ...       §  04     p.  Ill 

bills  to  set  aside §  64     p.  Ill 

alternative  relief  in  action  to  set  aside §  70     p.  118 

not  rendered  void,  by  multifariousness §  75     p.  126 

conditional,  sometimes  entered  for  the  purposes  of  doing 

equity §  84     p.  138 

pro  confesso §  101     pp.  1G5-1G9 

requiring  answer  to  obtain  a  proper §  149     p.  221 

taking  bill  pro  confesso,  appeal  from §  104     p.  109 

mandatory  injunctions  rarely  granted  before  a     ....     §  226     p.  326 

discontinuance  before §  291     pp.  131-435 

court  may  make ,a  final  decree  upon  the  hearing  .  .  .  .  §300  p.  445 
leave  given  to  apply  for  further  orders  at  foot  of  ....     §  300     p.  446 

definition  and  classification §  317     p.  466 

final  and  interlocutory §  318     pp.  406-467 

in  personam §  319     pp.  467-469 

in  rem §320     | 

absolute  and  conditional §321     pp.  469-470 

nisi §  322     pp.  470   173 

in  the  nature  of  decrees  nisi §  323     p.  473 

time  of  entry  of  decree $  321     pp.473    17  1 

frame  of  decree §  325       pp.  171-476 

costs  in  Supreme  Court  of  the  United  States  upon  reversal 

of  decree  for  want  of  jurisdiction §393     p   590 

from  what  decrees  a  party  may  appeal §  397     p.  001 

dismissing  cross-bill,  as  to  right  to  appeal  from  ....     §  39S     p.  602 


736  INDEX. 

DECREE  —  continued. 

distinguished  from  decision,  for  purposes  of  appeal      .     .     §  398     p.  602 
final,  denned,  for  purposes  of  writ  of  error  from  Supreme 

Court  to  State  court §  405     p.  614 

when  interest  awarded  on  affirmance  of      ......§  409     p.  623 

See  also  Writs  of   Errok   and   Appeals;    Correction  op  Decree 
otherwise  than  by   appeal  ;    enforcement  of   decrees  and 
Orders  ;  Hearing  ;  Interlocutory  Applications  and  Petitions  ; 
Judgments  ;  Parties. 
DECREE    OF   FEDERAL   COURT, 

jurisdiction  of  bill  to  restrain,  regulate,  set  aside,  construe, 

or  enforce §  21     p.  28 

DECRETAL   ORDER, 

defined §  203     p.  293 

DEDIMUS   POTESTATEM, 

taking  testimony  by  a  commission  under  a §  285    p.  423 

commissions  under §  285     p.  423  ;  §  288    pp.  427-428 

proceedings       »        §289    pp.  428-431 

DEEDS, 

trustees  under,  when  necessary  parties  to  suits  affecting 

property  covered  by §  45     p.  87 

bills  to  contain  no  unnecessary  recitals  of §  68     p.  114 

alternative  relief  in  action  to  set  aside §  70     p.  118 

by  receiver §  245     p.  359 

permitting  master  under  Lord  St.  Leonards'  Act  to  exe- 
cute deed  or  other  written  instrument  in  the  name  of 

a  party  who  refuses  to  do  so §  349     pp.  511-512 

See  also  Grants. 
DEFAULT, 

opening,  how  far  State  practice   respecting  opening  of, 

followed §  360     p.  530 

when  a  constructive  admission §  266     p.  396 

dismissing  bill  for  want  of  prosecution §  292     p.  435 

appeal  from  decree  entered  pro  confesso §  397     p.  601 

effect  of  no  appearance  for  plaintiff  in  error,  when  case  is 

called  for  argument §  408    p.  622 

See  also  Taking  Bills  pro  Confesso. 
DEFECTS, 

which  should  be  taken  advantage  of  by  demurrer     .     .     .     §  110     p.  178 

DEFENDANTS, 

who  may  be §  35  p.  68 

who  cannot  be §  35  p.  68 

United  States  ordinarily §  35  p.  68 

foreign  States §  35  p.  68 

sovereigns,  for  acts  done  in  a  political  ca- 
pacity        §  35  p.  68 

the  individual  States  under  certain  circum- 
stances      §  35  p.  68 

receivers  without  leave §  35  p.  68 

foreign  executors  and  administrators    .     .  §  35  p.  68 

the  President  of  the  United  States  ...  §  35  p.  68 


index.  737 

DEFENDANTS  —  continued. 

United  States  as,  liability  to  private  person    ....       §  36     pp.  68-71 

States  as,  liability  to  private  persons §  37     pp.  71-77 

"         "         "         suit  by  other  States §  3S     pp.  77-78 

infants  as §  39     pp.  78-79 

idiots,  lunatics,  and  persons  of  weak  mind §  40     p.  79 

married  women §  41     p.  80 

persons  interested  in  relief  prayed  for  who  do  not  join  as 

plaintiffs  should  be  made §  42     p.  81 

omission  from  bills  of  such  as  are  not  within  jurisdiction 

of  court §  50     p.  92 

who  can  take  objection  to  multifariousness  in  bills  ...       §  75    p.  126 
not  prevented  from  being  witnesses  in  their  own  favor, 

when §  84     p.  138 

such  persons  only  are,  against  whom  process  is  prayed      .       §  85     p.  140 
cases  in  which  parties  desiring  to  intervene  as  plaintiffs 

may  be  made §  201     p.  291 

when  defendant  can  move  for  appointment  of  receiver      .     §  253     p.  378 
removal  of  cause  where  time  for  removal  has  expired  as 

to  one  defendant §  385     p.  575 

misjoinder  of.     See  Bills. 

filing  of  cross-bills  by.     See  Cross-Bills. 

See  also  Bills;   Co-Defendants;  Parties;  Plaintiffs. 
DEFENSE, 

counter-averments  to  avoid  anticipated §  76     p.  127 

which  are  pleadable  by  way  of  answer §144     pp.  211-212 

peculiar  to  patent  cases §  145     pp.  211-216 

DEFINITION, 

of  equity §  1     p.  1 

DELAWARE, 

constitutes  one  judicial  district §  26     p.  38 

times  and  places  of  holding 
court  therein  enumerated         §26     p.  38 
districts  of,  included  within  the  Third  Circuit     ....     §  204     p.  295 
DELAY, 

dissolution  of  interlocutory  injunction  fordelay  in  bringing 

cause  to  a  hearing s  236     p.  338 

dismissal  of  bills  for  want  of  prosecution    ....     §  292     pp.  435-436 

motion  to  dismiss  appeal  or  writ  of  error  for §  406     p.  616 

interest  awarded  where  writ  of  error  or  appeal  was  taken 

merely  for §  409     p.  624 

DELIVERY   OF   PROPERTY, 

injunctions  to  prevent S  210     p.  302 

injunctions  to  compel §  221     p.  319 

DEMURRER, 

for  want  of  parties §  61     pp.  105-106 

by  defendants  for  joinder  of  improper  parties      .     .       §  62     pp.  106-107 

for  joinder  of  improper  parties §  62     p.  107 

"  "  cannot  be  raised  for  first 

time  on  appeal      ...       §  62     p.  107 
47 


738  INDEX. 

DEMURRER  —  continued. 

whether  allowable  for  omissions  in  address  and  introduction 

to  bill §  6G     p.  113 

for  failure  to  state  facts  in  bill  positively §67     p.  114 

scandal  and  impertinence  not  ground  of §  68     p.  116 

for  multifariousness .     .     .     .       §  71     p.  120 

the  proper  mode  of  taking  objections  to  bills  for  multi- 
fariousness        §  75     p.  126 

to  bill  for  lack  of  certainty §  78     p.  132 

for  failure  to  allege  conformity  with  statute §  78     p.  133 

when  omission  of  waiver,  tender,  or  offer  is  ground  for     .       §  81     p.  140 

to  bill  for  want  of  signature §  86     p.  141 

omission  of  affidavit  to  bill  of  interpleader  filed  by  corpo- 
ration, when  ground  of §  89     p.  144 

definition  and  general  characteristics     . §  105     p.  170 

admissions  by §  106     pp.  170-172 

to  parts  of  bills §  107     pp    172-174 

classification  of  demurrers  to  the  relief       ....     §  108     pp.  174-177 

to  the  discovery,  defined  and  classified §  109     pp.  177-178 

of  what  defects  advantage  should  be  taken  by     ....     §  110     p.  178 

when  should  be  filed §  111     pp.  178-179 

title  of §  112     p   179 

protestation §  113     p.  179 

statement  of  the  extent  of §114     pp.  179-180 

"  "       causes  " §  115    pp.  180-182 

demurrers  ore  tenus §  116     p.  182 

prayer  of  judgment  in §  117     pp.  182-183 

certificate  of  counsel  to  accompany §  118     p.  183 

affidavit  of  defendant"  "  §118     p.  1S3 

motions  to  take  demurrers  off  the  file §  119     p.  183 

setting  demurrers  down  for  argument §120     p.  184 

argument  of §  121     pp.  184-185 

overruling §  122     pp.  185-186 

sustaining §  123     pp.  186-187 

"  giving  leave  to  amend §  123     p.  187 

"  Lord  Cottenham's  opinion §  123     p.  187 

to  plea,  practice  of  filing,  irregular         §  140     p.  206 

replication  cannot  be  filed  to  a §  156     p.  230 

when  bill  may  be  amended  before §  164     p.  240 

amendments  of §  166     p.  242 

to  bill  of  revivor §  181     p.  264 

to  supplemental  bill §  189     p.  274 

objections  to  the  form  of  a  petition  for  intervention  to  be 

taken  by §  202     p.  292 

injunction  will  not  usually  be  granted  while  demurrer  to 

bill  is  pending §  228     p.  327 

when  a  constructive  admission §  266     p.  396 

removal  of  cause  after  overruling §  385     p.  575 

to  plaintiff's  pleading,  where  after  removal  to  Federal  court 

he  proceeds  on  wrong  side  of  the  court §  391     p.  585 


INDEX.  739 

DENIALS, 

and  admissions  in  answer,  independent  of  discovery     §  146     pp.  215-216 

DEPOSITIONS, 

what  is  brought  up,  on  motion  to  suppress §  197     p.  284 

common-law  procedure  respecting §  360     p.  530 

taken  before  removal  of  cause  to  Federal  court,  whether 

witness  can  be  compelled  to  sign  same  after  removal      .  §  392     p.  5S9 

to  be  embodied  with  record  on  appeal §  403     p.  607 

See  also  Evidence  ;  Practice  at  Common  Law. 

DEPtlVATIVE   TITLE, 

setting  forth  in  bill §  78     p.  131 

DESCRIPTION, 

of  petitioner,  to  be  stated  in  petition  of  intervention     .     .     §  202     p.  292 

DESTROYED   DOCUMENTS   AND   RECORDS, 

introducing  copies  in  evidence §  268     p.  402 

DIAGRAMS, 

used  as  exhibits  in  court  below §  403     p.  608 

DIFFERENCE, 

of  citizenship  as  affecting  jurisdiction §§  17-19     pp.  25-27 

of  citizenship,  how  determined §  19     p.  26 

DIRECTIONS, 

receiver  applying  to  court  for §  246     p.  362 

to  receivers §  248     pp.  368-369 

See  also  Instructions. 
DIRECTOR, 

when  not  a  necessary  party  in  suit  against  colleagues  for 

breach  of  trust §  52     p.  96 

effort  of  plaintiff  to  secure  action  by,  on  part  of  stock- 
holders, to  be  set  forth §  76     p.  128 

of    corporation,  appointing  receiver  in  suits  against,  for 

neglect  of  duty §  240     p.  344 

of  corporation,  not  usually  appointed  receiver       ....     §  255     p.  380 
when  stockholders  can  have  suit  discontinued  as  against 

wishes  of  majority  of  directors §  291     p.  434 

DISABILITY, 

discovery  cannot  be  required  of  person  under §  148     p.  219 

of  judge,  who  to  act  in  case  of §  204     p.  296 

DISBURSEMENTS. 

See  Costs. 
DISCHARGE, 

of  receiver's  sureties §  256     p.  382 

of  writ  ne  exeat §  263     p.  393 

of  receiver §  260     pp.  387-388 

See  also  Removal. 
DISCHARGE   OF   ACCUSED, 

by  writ  of  habeas  corpus §  366     p.  541 

DISCLAIMERS. 

See  Answers  and  Disclaimers. 


740 


INDEX. 


DISCONTINUANCE. 

See  Dismissing  Bills  otherwise  than  at  a  Hearing. 

DISCOVERY, 

as  a  subject  of  jurisdiction §2     p-  4 

English  practice  allowed  strangers  to  be  made  parties  to 

suit  in  certain  cases  for  the  sake  of  a §  43     p.  82 

bills  for §  G4     p.  110 

no  person  compelled  to  discover  that  which  may  expose 

him  to  a  penalty  or  forfeiture §    84     p.  140 

demurrers  to  the §  109     pp.  177-178 

when  can  be  compelled §  109     p.  178 

pleas  to  the §  134     p.  200 

admissions  and  denials  in  answer  independent  of  .     §  146     pp.  215-216 

practice  as  to §  148     pp.  217-221 

See  also  Answers  and  Disclaimers. 

bills  of §  281     pp.  416-418 

pendency  of  bill  of,  not  a  bar  to  a  motion  for  nonsuit  for 

failing  to  comply  with  order  requiring  production  of 

books  and  papers §  372     pp.  552-553 

See  also  Cross-Bills;  Interrogatory  Clause. 
DISMISSAL, 

of  bill  upon  hearing  .     .     .     . §  300     p.  445 

of  suit  by  consent,  costs  and  fees  on §  331     p.  485 

DISMISSING   BILLS   OTHERWISE   THAN   AT   A  HEARING, 

dismissal  of  bills  by  the  plaintiff §  291     pp.  434-435 

lor  want  of  prosecution  ....     §  292     pp.  435-436 

"     jurisdiction  ....     §  293     pp.  436-438 

for  failure  to  perfect  or  revive  suit      .     .     §  294     p.  439 

for  failure  on  plaintiff's    part  to  elect 

whether  he  will  proceed  at  law  or  in 

equity §  295    pp.  439-440 

DISSOLUTION, 

of  interlocutory  injunctions §  235    pp.  335-337 

of  corporation,  appointment  of  receiver  on §240     p.  315 

DISTRICT   ATTORNEY, 

motion  on  behalf  of §  197     p.  2S4 

DISTRICT    COURTS, 

original  jurisdiction  of •     §  25     pp.  34-35 

subjects  of      "         "     enumerated §  25     pp.  34-35 

territorial  jurisdiction  and  terms  of  holding    ....     §  26     pp.  35-56 

rules  of  practice  promulgated  by §    27     p.    57 

what  judges  may  grant  orders  in §  204     p.  296 

clerk's  fees  in §  331     pp.  484-488 

See  Costs. 
have  no  power  to  enact  rules  regulating  the  taking  ...     §  372     p.  552 
jurisdiction  of,  in  condemnation   proceedings   to   acquire 

real  estate  for  United  States  government  .     §  25     p.  35;  §  381     p.  565 
review  of  judgments  and  decrees  of,  by  Circuit  Courts  §  404     pp.  610-612 
See  also  Writs  of  Error  and  Appeals. 


INDEX.  741 

DISTRICT   OF   COLUMBIA, 

courts  of §  13     p.  20 

whether  courts  of,  have  jurisdiction  in  equity     ....         §  14     p.  20 

controversy  to  which  citizen  of,  is  a  party §  19     p.    26 

appeals  from  Supreme  Court  of §  391     p.  592 

DIVISION   OF   OPINION, 

no  costs  granted  on §  327     p.  480 

review  by  writ  of  error  on  certificate  of §394     p.  591 

certificate  of §  396     pp.  597-598 

DOCKET, 

when  plaintiff  in   error,  or  appellant  to  docket  cause  in 

United  States  Supreme  Court §  403     p.  608 

failure  of  plaintiff  in  error  to  docket  case  and  file  record 

in  time §  403     p.  609 

defendant  in  error  may,  if  he  chooses,  docket  the  cause 

and  file  the  record §  403     p.  610 

See  also  Calendar  ;  Preferences. 

DOCUMENTS, 

loss  of,  as  a  subject  of  relief  in  equity §  2     p.  3 

bills  to  contain  no  unnecessary  recitals  of §  68     p.  114 

See  also  Instruments. 

DOCUMENTARY   EVIDENCE.     See  Evidence. 

DOUBLE   ASPECT, 

bills  with §  70     pp.  117-118 

DRAWBACKS    OF   DUTIES, 

jurisdiction  of  suits  by  assignees  of  debentures  for       .     .         §  15     p.  22 

DRUMMOND,   JUDGE, 

view  of,  as  to  assessing  damages  under  injunction  ...     §  237     p.  339 

DRUNKENNESS, 

when  to  be  specifically  charged  in  bill §  69     p.  117 

DUPLICATE   WRITS §  22     pp.  30-31 

DURESS, 

as  a  subject  of  relief  in  equity §  2     p.  3 

DUTY, 

performance  by  officer  not  compelled  by  bill  in  equity  .     .         §  12     p.  17 

of  receivers §  250     pp.  373-374 

burden  of  proof  in  suits  where  any  seizui'e  is  made  pur- 
suant to  an  act  providing  for,  or  regulating  collection  of 
duties  on  imports  or  tonnage §  268     pp.  405—106 


E. 

EIGHTH  CIRCUIT, 

district  included  in §  204     p.  295 

EJECTMENT, 

assisted  by  injunction §  11     p.  14 

jurisdiction  in  equity  over  suit  for §  21     p.  29 

necessary  parties  on  filing  bill  to  stay  proceedings  in     .     .       §53     p.  101 
State  statute  giving  right  to  two  trials  in  action  of,  how 
far  binding  upon  Federal  tribunals §  375     p.  559 


742  INDEX. 

ELDON,  LORD   CHANCELLOR, 

labors  of,  in  widening  jurisdiction  of  courts  of  equity     .  §  1    p.  2 

remarks  of,  upon  parties  to  suits  against  corporations  .  §  43  p.  83 
criticism  of,  upon  Lord  lledesdale's  view  of  bills  in  the 

nature  of  supplemental  bills §  192     p.  278 

power  of  courts  of  equity  to  protect  patents  by  injunction 

since  time  of §  216     p.  311 

view  of,  as  to  foundation  of  power  of  courts  of  equity  to 

restrain  by  injunction  infringement  of  copyright  ...     §  217     p.  314 

rule  of,  as  to  form  of  writ  of  injunction §  234     p.  334 

on  appointment  of  peer  as  receiver §  255    p.  380 

on  discharge  of  writ  ne  exeat §  263     p.  393 

on  the  manner  of  reviewing  in  equity  the  verdict  of  a  jury 

upon  an  issue §  305     p.  452 

ELECTION, 

under  a  will,  as  a  subject  of  relief  in  equity §  2     p.  3 

dismissal  of  bill  for  failure  of  plaintiff  to  elect  whether  he 

will  proceed  at  law  or  in  equity §  295     pp.  439-440 

ELECTIVE   FRANCHISE, 

removal  to  Federal  court  of  suits  and  prosecutions  on  ac- 
count of  acts  done  uuder  law  relative  to §  383     p.  569 

EMINENT   DOMAIN, 

party  whose  land  has  been  taken  by,  may  obtain  injunc- 
tion against  corporation  for  using  such  lands  for  pur- 
poses not  allowed  by  the  corporation's  charter  ....     §  207    p.  299 
See  Condemnation  Proceedings. 
ENACTMENT, 

whether  a  State  statute  has  been  passed  by  the  legislature 
is  a  question  as  to  which  the  Federal  courts  will  follow 
the  decisions  of  such  State §  375    p.  558 

ENDORSEMENT, 

of  writ,  how  far  State  practice  followed  respecting  ...  §  360  p.  530 
of  summons    "      "  "  "  "...     §  360    p.  530 

ENEMIES, 

alien,  incapable  of  being  plaintiffs §§  28,  30     p.    64 

ENFORCEMENT   OF   DECREES   AND    ORDERS, 

in  general §  339     p.  500 

executions §310  pp.  500-502 

contempts §  341  pp.  502-504 

notice  of  application  for §  342  pp.  504-505 

hearing  upon §  343  pp.  505-506 

order  of  commitment §  344  pp.  506-507 

writ  of  attachment §  345    p.  507 

execution  of §  346  pp.  507-509 

sequestration §  347  pp.  509-510 

assistance,  writ  of §  348  pp  510-511 

action  by  court  itself,  Lord  St.  Leonards'  Act      .     .     §  349  pp.  511-512 
permitting  master  to  execute  deed  or  other  written  instru- 
ment in  the  name  of  party  who  refuses  to  do  so     .    §  349  pp.  511-512 


INDEX.  743 

ENTERING   AN   APPEARANCE, 

practice  upon.     See  Appearance. 

EPIDEMIC   DISEASE, 

provisions  as  to  holding  terms  of  United  States  Supreme 

Court  in  case  of §    26     p.    35 

EQUAL   RIGHTS, 

suits  under  law  conferring §    15     p.    21 

EQUITABLE   JURISDICTION, 

illustrations  of,  in  the  Federal  courts §§  10-11     pp.  12-15 

vested  in  what  courts §    13     p.    20 

EQUITABLE   RIGHTS, 

injunctions  to  enforce §  20G     pp.  207-298 

EQUITY, 

new  remedies  adopted §  1  p.      1 

origin §  1  p.      1 

definition  of §  1  p.       2 

differences  between  equity  and  common  law §  1  p.  1-2 

has  been  in  some  cases  followed  by  common  law  ....  §  1  p.      2 

when  once  it  acquires  jurisdiction,  gives  complete  relief    .  §  1  p.      2 

exercises  control  over  persons §  1  p.      2 

general  survey  of  jurisdiction  of §  2  p.      3 

distinction  between  law  an'd,  in  Federal  courts     ....  §  4  pp.  5-6 

consolidation  at  law  and  in  equity §  371  p.  550 

EQUITY  OF  REDEMPTION, 

when  mortgagor  who  has  sold,  is  a  necessary  party  to  bill 

of  foreclosure §    44    p.    84 

See  also  Foreclosure,  Mortgages. 

ERROR, 

writ  of  habeas  corpus  to  correct  .     ...    e     .....     §  362     p.  542 

order  granting  or  denying  motion  for  new  trial  cannot  be 

reviewed  upon  a  writ  of  error .     .  §  376     p.  559 

time  when  execution  can  be  issued  where  writ  of  error  lies 

to  the  Supreme  Court §  380     p.  562 

failure  to  assign,  in  Supreme  Court,  effect  of §  408    p.  621 

See  also  Mistake;  Writs  of  Error  and  Appeals. 

ERSKINE,   LORD  CHANCELLOR, 

on  petitions .     .     , §  199    p.  287 

ESTATE, 

costs  out  of §  335    pp.  496-497 

ESTOPPEL, 

judgment  acting  as,  in  subsequent  suit §  395     p.  595 

EVIDENCE, 

when  voluminous  or  tedious,  not  ground  of  equitable  juris- 
diction       §    12     p.    20 

judicial  notice  of  statutes §    68     p.  115 

not  necessary  to  charge  admissions  specifically  in  bill  in 

order  to  give  in  evidence §    C9     p.  117 


744  INDEX. 

EVIDENCE  —  continued. 

bill  should  state  facts  and  not  evidence §    69     p.  117 

if  plaintiff  has,  which  would  take  defendant  by  surprise, 

it  should  be  indicated  in  the  bill §    69     p.  117 

waivers  and  offers  in  bills  as §    84     p.  137 

in  patent  cases §  145     p.  213 

where  proposed  amendments  consist  of  matters  disclosed 

by  documentary §  168     p.  244 

what  is  brought  up  on  a  motion  to  suppress  depositions    .     §  197     p.  284 

in  general §  2G4    p.  395 

admissious §  265     pp.  395-396 

constructive  admissions §  266     pp.  396-397 

documentary,  in  general .     §  267     pp.  397-398 

Federal  statutes  regulating  admission  of  §  268     pp.  398-406 

affidavit,  definition  and  use  of §  269     p.  406 

manner  of  verifying §  270     p.  406 

title  of §  271     p.  407 

form  of §  272    pp.  407-408 

execution §  273     pp.  408-409 

competency  of  witnesses §274     pp.  409-411 

subpoenas  ad  testificandum §275     p.  411 

service  of §  276     p.  412 

compelling  witness   to 

testify     .     .     .     §  277     pp.  412-413 
testimony  taken  in  equity  which  may  be  used  in  other 

courts §  278     p.  413 

bills  to  perpetuate,  requisites      ....     §  279     pp.  413-416 

to  take,  de  bene  esse §  280     p.  416 

bills  of  discovery §  281     pp.  416-418 

testimony  taken  before  cause  is  at  issue §  282     pp.  418-419 

after  cause  is  at  issue §  283     pp.  419-420 

present  method   of   taking  testimony   within   the   juris- 
diction  §284    pp.  420-423 

testimony  after  cause  is  at  issue,  and  beyond  the  jurisdic- 
tion of  the  court §  285     p.  423 

depositions  de  bene  esse  under  the  Acts  of  Congress  .     §  286     pp.  424-426 

form  of  under  the  Acts  of  Congress    .     .     §  287     pp.  426-427 

dedimus  poteslatem  commissions  issued  under    .  §  2fc5  p  423;  §  288  p  427 

proceedings  upon §  289     pp.  428-431 

letters  rogatory §  290     pp.  432-433 

before  master §  313     pp.  460-461 

recitals  of,  in  decrees §  325     p.  474 

common-law  procedure  respecting §  360     p.  530 

reviewed  on  appeal  to  Supreme  Court §  394     p.  591 

See  also  Practice  at  Common  Law. 

EXAMINATION, 

to  enable  party  to  frame  pleading §  372     p.  55- 

order  for  examination  of  party  before  trial  made  prior  to 

removal  to  Federal  court,  effect  of  removal  upon  ...     §  392     p.  589 
EXAMINER, 

testimony  before.     See  Evidence. 


INDEX.  745 

EXCEPTIONS, 

to  master's  reports ,     .     §  315    pp.  462-463 

bills  of,  common-law  procedure  respecting §  360     p.  530 

principles  relative  to  bills  of  exceptions §  377     pp.  559-500 

EXCLUSIVE  JURISDICTION, 

of  court  of  probate §      7     p.      8 

EXCOMMUNICATION, 

plea  of §  141     p.  208 

EXECUTIONS, 

common-law  procedure  respecting,  also  of  proceedings  sup- 
plementary thereto §  360     p.  530 

satisfying  property  not  reachable  on §      2     p.      4 

writs  of t §  310     pp.  500-502 

See  also  Enforcement  of  Decrees  and  Orders. 
proceedings  supplementary  to  execution      ....     §  380     pp.  502-565 
in  what  cases  Supreme  Court  issues §  409     p.  623 

EXECUTOR, 

bill  by  legatee  against „     § 

citizenship  of,  as  affecting  jurisdiction § 

capacity  of  foreign,  to  sue § 

foreign,  when  cannot  be  sued § 

when  to  be  made  a  party  to  suits  affecting  estate       ...     § 

when  necessary  party  to  suits § 

necessary  parties  in  suits  against § 

evidence  in  actions  by  or  against §  274 

abatement  and  revivor  of  suits §  373     pp.  553-554 

right  of,  to  appeal  or  bring  writ  of  error §  397     p.  599 

EXECUTORY   ASSIGNMENT, 

necessary  parties  to  suit  by  assignee  of §    44     p.    84 

EXEMPLIFICATION, 

of  books  and  documents  to  be  used  in  evidence     ....     §  268    p.  404 

EXEMPTION, 

from  service  of  subpoena §  98    pp.  159-100 

EXHIBITS, 

to  be  embodied  with  record  on  appeal §  403     p.  607 

models,  diagrams,  and  exhibits  of  material  used  in  court 
below,  how  to  be  transmitted  to  Supreme  Court  of 
United  States §  -103     p.  608 

EXONERATION, 

as  a  subject  of  jurisdiction  in  equity §      2     p.      4 

EX   PARTE, 

motions  made,  rules  respecting §  194     p.  279 

appointment  of  receiver  not  usually  made §  252     p.  378 

application  for  writ  of  ne  exeat  republica  may  be  made .     .     §  263     p.  391 

EXPENDITURE, 

by  receiver §  246  p.  302;  §  250  p.  373 

EXPRESS   TRUSTS, 

as  subjects  of  equity  jurisdiction §      2     p.      3 


11 

V- 

12 

19 

P- 

26 

31 

P- 

68 

35 

P- 

68 

42 

P- 

82 

45 

P- 

S5 

52 

P- 

96 

»74 

P- 

409 

746 


INDEX. 


EXTRADITION, 

habeas  corpus  to  examine  the  legality  of  prisoner's  deten- 
tion under  extradition  proceedings §  360 

habeas  corpus  in §  366 

EXTRA   TERRITORIAL, 

jurisdiction  of  equity ..„...§      1 


544 
544 


F. 


FACTS, 

conclusions  of  law  not  to  be  stated  in  bills §    69     p.  116 

trials  of  issues  of  fact  in  common-law  actions  ...     §  374     pp.  554-556 

findings  of §  374     pp.  554-556 

when  trial  judge  may  comment  upon §  374     p.  556 

reversals  in  Supreme  Court  for  errors  of  fact §  394     p.  591 

See  also  State  of  Facts. 
FAILURE   TO   APPEAR. 

See  Taking  Bills  pro  Confesso. 

FEDERAL   COURTS, 

property  in  custody  of §    10     p.    12 

having  jurisdiction  in  equity,  enumerated §    13     p.    20 

how  far  can  interfere  by  injunction  with  matters  in  State 

courts §  211    p.  303 

See  also  United  States  Courts. 

FEDERAL    GOVERNMENT. 

See  United  States. 
FEDERAL   OFFICERS, 

introduction  in   evidence  of  official   documents  in  suits 

affecting §  268     p.  399 

See  also  Congress;  Revenue  Officers,  and  other  officers  under  respect- 
ive titles. 

FEDERAL   QUESTION, 

must  be  involved  before  writ  of  error  from  Supreme  Court 

will  be  issued  to  State  court §  405    p.  613 

existence  of,  distinctly  to  appear  in  record  on  writ  of  error 

from  Supreme  Court  to  State  court §405     p.  615 

FEDERAL  SUPREME  COURT. 

See  Supreme  Court  of  the  United  States. 
FEE, 

of  counsel  assigned  to  petitioner  suing  in  forma  pauperis  .     §  200    p.  289 

receiver,  when  obliged  to  act  without §  255     p.  381 

receivers §  258     pp.  3S4-385 

master §  314     p.  461 

attorneys §  330     pp.  481-484 

appraisers  of  goods  taken  in  execution  under  writ  of 
fieri  facias §  380     p.  563 


INDEX.  747 

FEE  —  continued. 

undertaking   to  clerk,  for  fees,  by  plaintiff  in  error  on 
docketing  cause   and   filing    record    in    United    States 

Supreme  Court §  403     p.  610 

no  security  required  to  clerk  of  Supreme  Court  of  United 

States  for  fees  on  writ  of  error  in  criminal  prosecutions     §  403     p.  G10 
See  also  Costs. 

FEIGNED   ISSUE, 

when  court  may  direct §  300     p.  446 

old  practice  of §  304     p.  449 

See  also  Issues  at  Law. 

FIERI   FACIAS, 

appraisement  of  goods  taken  in  execution  under  writ  of    .     §  380     p.  563 

FIFTH   CIRCUIT, 

districts  included  in §  204     p.  295 

FILE, 

taking  bill  off,  for  want  of  signature §    86  p.  141 

motion  to  take  plea  off §  139  p.  205 

motions  to  take  answers  off §  152     pp.  224-225 

striking  disclaimer  off,  when  insufficient §  155  p.  228 

moving  special  replication  off  the §  156  p.  231 

removal  of  cause  after  motion  to  take  bill  off §  385  p.  575 

FILING, 

what  constitutes  a  proper §  331     p.  485 

FINAL   DECREE, 

defined,  for  purposes  of  writ  of  error  from  Supreme  Court 

to  State  court §  405     p.  614 

See  also  Decrees. 
FINAL   INJUNCTIONS. 

See  Injunctions. 
FINAL  JUDGMENTS, 

writs  of  error  in §  394     p.  594 

FINAL   PROCESS. 

See  Enforcement  of  Decrees  and  Orders. 
FINDINGS, 

in  common-law  actions §  374     pp.  554-556 

how  far  review  on  appeal  may  extend  where  jury  trial  is 

waived  and  the  findings  are  special §  374     p.  555 

FIRST   CIRCUIT, 

districts  included  in §  204     p.  295 

FLORIDA, 

divided  into  two  districts §    26     p.    38 

counties  and  times  and  places  of 
holding  court  therein  enu- 
merated      §    26     p.     38 

districts  of,  included  within  Fifth  Circuit §  201     p.  295 

introducing  in  evidence  transcripts  from  certain  books  of 

the  District  Courts  in §  208     p.  401 


p< 

9 

p- 

13 

p- 

83 

p- 

96 

p- 

101 

p- 

347 

p- 

476 

p- 

606 

p- 

68 

p. 

68 

74S  INDEX. 

FOOT, 

length  of  chancellor's,  as  being  the  measure  of  jurisdiction 

in  equity §      1     P«      1 

FOOT   OF   DECREE, 

leave  given  to  apply  for  further  orders  or  directions  at      .     §  300     p.  446 

FORCE. 

See  Duress. 

FORECLOSURE, 

of  lieu  of  municipal  assessment §      7 

by  bondholder ' §11 

who  necessary  parties  to §    44 

whether  subsequent  lienors  are  necessary  parties  to  suit  for     §    52 
whether  prior  incumbrancers  are  necessary  parties  to  suit 

for §    53 

of  railroad  mortgages,   rules  regulating  appointment  of 

receiver  in §  243 

decrees  in  foreclosures §  325 

security  required  on  applying  for  supersedeas  in  ....     §  402 
See  also  Mortgage;  Equity  of  Redemption. 
FOREIGN   ADMINISTRATOR, 

capacity  of,  to  sue §    34 

when  cannot  be  sued §    35 

FOREIGN   CORPORATIONS, 

jurisdiction  over §  22     pp.  29-30 

See  also  Corporations. 
FOREIGN   COURT, 

power  to  restrain  defendant  from  suing  in §  211 

FOREIGN   DOCUMENTS, 

translation  of,  to  accompany  record  on  appeal      ....     §  403     p.  608 

FOREIGN   EXECUTOR, 

capacity  to  sue §    34     p.    68 

when  cannot  be  sued §    35    p.    68 

See  also  Executor. 

FOREIGN    GOVERNMENT, 

introducing  in  evidence  documents  belonging  to  or  in  the 

custody  of  officers  of §  268     p.  405 

FOREIGN   RECEIVERS, 

when  cannot  be  sued §    35     p.    68 

capacity  of ,  to  sue §    34    p.    68 

FOREIGN    STATES, 

when  cannot  be  sued §    35     p.    68 

FOREIGN   WITNESSES, 

examination  of,  as  a  subject  of  jurisdiction  in  equity    .     .     §      2     p.      4 

FORFEITURE, 

as  a  subject  of  relief  in  equity •     •  §      2  p.      3 

of  corporate  franchises  not  decreed  by  equity  at  suit  of 

private  citizen §    12  p.    19 

no  person  compelled  to  discover  what  will  expose  him  to  a  §    84  p.  140 

defendant  may  demur  to  bill  if  his  answer  subjects  him  to  a  §  109  p.  177 


304 


INDEX. 


749 


FORGED   INSTRUMENT, 

form  of  decree  setting  aside ...,..§  325     p.  476 

FORMAL   PARTIES. 

See  Parties. 

FORMAL   PARTIES'   CITIZENSHIP, 

does  not  affect  jurisdiction §    17     p.    20 

FORMA   PAUPERIS, 

petitions  for  leave  to  sue  in §§  199-200     pp.  288-290 

FORMER   ADJUDICATION, 

cases  once  adjudicated  by  the  Supreme  Court  on  the  merits 

may  be  advanced  on  calendar §408     p.  619 

FORMER   PROCEEDINGS, 

recitals  of,  in  decrees § 

FORMS, 

address  and  introduction  in  bill §  66 

interrogatory  clause  "     " §  82 

prayer  for  relief  "    " § 

subpoena §  91 

oath  or  affirmation § 

disclaimer § 

replication § 

writ  ne  exeat  republica §  263  pp.  392-393; 

jurat § 

appointment  by  master  of  day  for  hearing  reference      .     .     § 

recitals  in  decree § 

return  by  marshal  upon  writ  of  attachment  for  contempt 


p.  471 


bill  in  equity 

praecipe  for  subpoena  ad  respondendum      .     .     .     . 

subpoena 

praecipe  for  appearance 

demurrer 

plea .     . 

answer • 

disclaimer 

replication 

bill  of  revivor 

notice  of  taking  testimony 

master's  warrant  or  summons 

notice  accompanying  draft  of  master's  report  .     . 

writ  of  habeas  corpus 

petition  for  removal  from  a  State  court  to  a  Cir- 
cuit Court  of  the  United  States 

bond  of  removal 

final  record  in  equity 

appeal  and  allowance 

citation  on  appeal 

supersedeas  bond 

writ  of  error  to  Federal  court 

"  "         State         "         

assignment  of  errors 

prmcipe  for  appearance  in  Supreme  Court  .     . 


Appei 


dix, 


pp.  112-113 

pp.  135-136 

83    p.  137 

pp.  149-150 

151     p.  224 

155     p.  229 

159     p.  233 

pp.  642-013 

273     p.  409 

309     p.  456 

321     p.  174 

316     ]>.  508 

pp.  625-029 

p.  630 

p.  630 

p.  6:31 

pp.  631-632 

pp.  632-033 

pp.  633-0:!.") 

p.  630 

pp.  636-637 

pp.  637-010 

pp.  610-011 

p.  611 

]».  012 

pp.  613-614 


pp.  014-045 
pp.  fi  1.1-010 
pp.  646-647 
pp.  617  648 

p.  CIS 

p.  018 

pp.  619-0.')O 

650-651 

651-fin2 

p.  652 


PP 

pp. 


750  INDEX. 

FOR  SUCH   OTHER   OR  FURTHER  ORDER  OR  RELIEF    AS    TO 
THE   COURT    SHALL   SEEM  JUST, 
words  usually  embodied  in  notices  of  motion §  197     p.  284 

FORUM   ROMANUM, 

quoted  from,  on  service  of  subpoenas §    94    p.  152 

taking  bills  pro  confesso §104     p.  166 

FOURTEENTH   AMENDMENT, 

suits  under §    15     p.    22 

FOURTH   CIRCUIT, 

districts  included  in §  204     p.  295 

FRANCHISES, 

of  corporation,  not  forfeited  by  bill  in  equity  filed  by  pri- 
vate citizen §    12    p.    19 

FRAUD, 

as  a  subject  of  relief  in  equity §      2  p.      3 

ground  for  bill  to  cancel  contract §    11  p.     13 

in  cases  of,  persons  sometimes  allowed  to  be  made  parties 

for  the  purpose  of  being  mulcted  in  costs §    43  p.    83 

bills  impeaching  decrees  for §    64  p.  110 

specific  acts  of,  must  be  alleged;  general  charge  of,  in  bill, 

insufficient : §    69  p.  116 

when  to  be  specifically  charged  in  bill §    69  p.  117 

alternative  relief  in  actions  for §    70  p.  119 

allegations  as  to,  in  bill §    78  p.  133 

bill  filed  by  United  States  to  vacate  patent  for  public  lands 

on  account  of §    84  p.  139 

statute  of  frauds  can  be  raised  by  demurrer §  108  p.  176 

defendant  in  certain  cases  obliged  to  answer  a  charge  of, 

which  might  subject  him  to  a  criminal  prosecution  .  .  §  109  p.  178 
when  bill  specially  charges,  the  plea  to  such  part  must  be 

accompanied  by  answer §  137  p.  203 

making  out  case  of,  to  secure  appointment  of  receiver  .  .  §  241  p.  346 
removal   of  receiver   because   original   appointment  was 

obtained  by §  259  p.  386 

bills  to  impeach  decrees  on  account  of §  358     pp.  526-527 

Federal  courts  follow  statute  of  frauds  in  actions  at  com- 
mon law §  375  p.  558 

FRAUDULENT    CONSPIRACY, 

not  ground  for  bill  in  equity  to  recover  damages  alone  .     .     §    12     p.    17 

FRAUDULENT   MISREPRESENTATION, 

not  ground  for  bill  in  equity  to  recover  damages  alone .     .     §    12     p.     17 

FRIVOLOUSNESS, 

motion  to  dismiss  appeals  or  writs  of  error  for      ....     §  406     p.  616 

FUNDS, 

petition  for  payment  out  of  the  hands  of  an  officer  of  the 

court §  199     p.  288 

costs  out  of §  335    pp.  496-497 


INDEX.  751 


G. 


GENERAL  APPEARANCE, 

defined §  99     p.  161 

GENERAL   AVERAGE, 

account §11     p.  15 

GENERAL   RELIEF, 

prayer  for §  83     p.  136 

notice  of  motion  for §  197     p.  2S4 

GEORGIA, 

limitations  upon  jurisdiction  of  Federal  courts  in     .     .     .      note  on  p.  31 

divided  into  two  districts §  26     p.  38 

counties  and  times  and  places  of 
holding  court  therein  enumer- 
ated           §  26     pp.  38-39 

statutory  limitations  of  jurisdiction  by  residence      .     .     note  §  27     p.  58 

districts  of,  included  within  Fifth  Circuit §  201     p.  295 

GILBERT,    CHIEF   BARON, 

quotation  from  "  Forum  Roman um  "  of,  on  service  of  sub- 
poenas       §  94     p.  152 

on  history  of  taking  bills  pro  confesso §101     p.  166 

GRANTS, 

of  different  States,  suits  where  parties  claim  under  ...         §  20     p.  27 
jurisdiction   of  Federal  courts  in  cases  of  conflicting,  by 

different  States §  20     pp.  27-28 

allegations  in  bill  to  impeach  grant  or  patent  when  action 

is  not  brought  by  attorney-general §  76     p.  128 

practice  on  removal  of  suits  containing  controversies  be- 
tween citizens  of  the  same  State  claiming  land  under 

grants  of  different  States .     §  3S7     p.  5S0 

GRATIS, 

appearance  defined §  99     p.  161 

when  can  be  made §  100     p.  102 

GUARDIAN   AD   LITEM, 

when  citizenship  of,  does  not  affect  jurisdiction         ...         §  19     p.  26 

of  infant  when  and  how  to  be  appointed §  39     pp.  78-79 

removal  of §  39     p.  78 

petition  for  the  appointment  of,  for  infant §  199     p.  288 

evidence  in  actions  by  or  against §  271     p.  409 

bill  not  to  be  taken  pro  confesso  before  appointment  of     .     §  103     p.  101 
GUARDIAN   IN   SOCAGE, 

accounting  by §  1 1     p.  1 1 

GUARDIANSHIP, 

prayer  for  process  in  bills  to  state  whether  any  of  defen- 
dants are  under §  85    p.  110 


752  INDEX. 


H. 


HABEAS   CORPUS, 

followed  by  action  for  damages,  whether  affording  ade- 
quate remedy  for  illegal  arrest §  215     p.  310 

will  lie  if  order  committing  person  for  contempt  is  void     .     §  341     p.  507 

writ  of §  366     pp.  545-548 

practice  on  application  for §  367     pp.  545-548 

appeals  in §  368     pp.  548-549 

proceeding  under,  cannot  be  removed  from  a  State  to  a 

Federal  court §  383    p.  570 

cum  causa,  when  issued  by  clerk  on  removal  of  cause  in 

certain  cases §  388     p.  581 

stay,  upon  appeal  in  habeas  corpus  proceeding §  402     p.  607 

included  within  the  term  "  suit  "  for  the  purpose  of  a  writ 

of  error  from  Supreme  Court  to  State  court      ....     §  405     p.  614 

HAEC   VERBA, 

recitals  in,  in  bills §  68    p  114 

HARDWICKE,    LORD  CHANCELLOR, 

labors  of,  in  extending  jurisdiction  of  courts  of  equity.     .  §  1     p.  2 

view  of,  as  to  case  when  numerous  interests  have  been 
created  for  the  purpose  of  preventing  plaintiff  from  ob- 
taining equitable  relief §54     p.  102 

as  to  necessary  parties,  in  case  where  plaintiff  waives  his 

right  against  persons §  56     p.  103 

on  practice  of  taking  bills  pro  confesso §  104     p.  166 

practice  in  time  of,  respecting  the  granting  of  injunctions 

to  quiet  the  possession  before  hearing §  209     p.  302 

on  power  of  court  to  enjoin  proceedings  on  application  for 

mandamus §  211     p.  304 

on  rehearings §  351     p.  515 

HARE   OX   DISCOVERY, 

referred  to  on  the  subject  of  demurrer  to  the  discovery      .     §  109     p.  178 

IIATIIERLY,    LORD, 

on  injunctions  restraining  corporations  from  diverting 
their  funds  from  proper  purposes §  207     p.  29S 

HEARING, 

dissolution  of  interlocutory  injunction  for  delay  in  bring- 
ing cause  to  a §  236     p.  338 

bringing  suit  to  a §  296     p.  441 

manner  of  hearing  a  cause §  297     pp.  441-442 

rules  of  decision  upon  a  hearing §  298     pp.  442-443 

objections  which  cannot  be  made  upon  a  hearing      .     §  299     pp.  444-445 

action  of  the  court  upon  a  hearing §  300     pp.  445-446 

upon  application  for  attachment  for  contempt       .     .     §  343     pp.  505-506 
writs  of  error  in  criminal  prosecutions  advanced  to  speedy 

hearing §  403     p.  610 


INDEX.  753 

HEARING  —  continued. 

time  for  notice   before,  on  writ  of  error  from    Supreme 

Court  to  State  court §  405     p.  G15 

preferences  among  appeals  on  calendar  of  Supreme  Court      §  408     p.  019 
See  also  Dismissing  Bills  otherwise  than  at  a    Hearing. 

HEIR, 

suit  against,  for  performance  of  ancestor's  covenants,  ne- 
cessary parties  to §    42     p.    82 

HIGH   COURT   OF   CHANCERY, 

rules  of  equity  founded  in  practice  of §      1     p.      1 

See  also  Chancery. 

HISTORY, 

of  jurisdiction  in  equity    * §      1     p.      1 

of  taking  bills  pro  confesso §  104     p.  105 

of  replications §  150     pp.  230-231 

HOFFMAN,   MASTER, 

report  on  the  practice  and  effect  of  taking  bills  pro  con- 
fetso §  104     p.  106 

HUSBAND, 

when  to  be  united  with  wife  as  plaintiff §  31  p.  05 

when  to  be  made  co-defendant  with  wife §  41  p.  86 

when  may  be  omitted  as  a  party  in  certain  suits  by  wife   .  §  51  p.  95 


I. 

IDAHO, 

time  within  which  cause  to  be  docketed  in  United  States 

Supreme  Court  in  case  of  appeals  and  writs  of  error  from     §  403     p.  008 

IDIOTS, 

incapable  of  filing  bills  in  their  own  right §    28  p.    64 

capacity  to  file  bills  in  equity §28     p.  Gl;  §  33     pp.  06-07 

suits  against §  40  p.    79 

suing  alone,  ground  of  demurrer §  108  p.  174 

liberal  amendments  in  favor  of §160  p.  234 

appointing  receiver  of  property  of §  240  p.  344 

time  of,  to  bring  appeal  or  writ  of  error §  398  p.  602 

time  to  review  judgment  of  District  Court  by  Circuit  Court 

affecting §  404  p.  611 

ILLINOIS, 

divided  into  two  districts §    20     p.    39 

counties  and  times  and  places  of 
holding  court  therein  enumer- 
ated  §  26     p.    39 

districts  of,  included  within  Seventh  Circuit §  204     p.  295 

IMMATERIALITY, 

when  can  be  raised  by  demurrer §  109     p.  177 

48 


754  INDEX. 

IMPERTINENCE, 

exception  to  bill  for,  the  proper  remedy  if  it  contains  ir- 
relevant matter §  108     p.  17G 

in  answers §  147     p.  216 

replication  to  be  free  from §  159     p.  233 

bill  improperly  amended  within  the  rule  as  to       ....  §  162     p.  236 

in  bills  in  the  nature  of  supplemental  bills §  191     p.  277 

petition  for  intervention  to  be  free  from §  202     p.  292 

in  bills §  68    pp.  114-116 

IMPLIED   TRUSTS, 

as  a  subject  of  equity  jurisprudence §  2     p.  3 

IMPORTS, 

jurisdiction  of  suits  to  collect §  15     p.  22 

INABILITY, 

to  give  replevin  bond  no  ground  of  equitable  relief       .     .         §  12     p.  17 

INADEQUACY, 

of  remedy  at  law  denned §  11     p.  15 

See  also  Remedy  at  Law. 

of  consideration §  12     p.  19 

INCONSISTENCY, 

in  bills §  70    pp.  117-118 

INCONSISTENT   TITLES, 

persons  claiming  property  under,  should  not  be  joined  as 

defendants §  44     p.  84 

INDEMNITY, 

required  on  applying  for  supersedeas §  402     p.  606 

See  also  Security. 
INDIANA, 

constitutes  one  judicial  district §  26     p.  39 

times  and  places  of  hold- 
ing court  therein  enu- 
merated   §  26     pp.  39-40 

statutory  limitations  of  jurisdiction  by  residence  in  note    §  27     pp.  58-59 
districts  of,  included  within  Seventh  Circuit §  204     p.  295 

INDIANS, 

whether  a  tribe  of,  constitutes  a  foreign  State  ....  §  38  p.  78 
INDIVIDUAL   LIABILITY, 

of  stockholders  in  corporations §  7     p.  9 

INDORSEES, 

jurisdiction  of  Federal  courts  in  actions  by §  24     p.  33 

INDORSEMENT, 

of  writ  of  injunction §  234     p.  335 

INDORSMENT   OF   NOTES, 

injunctions  to  restrain  .     .     .     ,     , §  210    p.  302 

INFAMOUS   CRIME, 

denned §  366    p.  543 

INFANTS, 

suit  by  next  friend  or  guardian §  19     p.  26 

capacity  to  file  bills  in  equity  in  their  own  right     §  28     p.  64 ;  §  32     p.  65 


INDEX.  755 

INFANTS  —  continued. 

as  defendants §  39     p.  78 

prayer  for  process  in  bills  to  state  whether  any  defendant 

is  an  infant §  S3  p.  140 

whether  hill  can  be  taken  pro  confesso  against      ....  §103  p.  161 

suing  alone,  ground  of  demurrer         §  108  p.  171 

objection  that  plaintiff  is  an  infant  raised  by  plea     .     .     .  §127  p.  191 

discovery  cannot  be  required  of §  148  p.  219 

liberal  amendments  in  favor  of §100  p.  231 

petition  for  appointment  of  guardian  for,  and  to  maintain 

infant  out  of  his  property §  199  p.  2S8 

suing  or  defending  in  forma  pauperis §200  p.  288 

when  receiver  of  property  of,  will  be  appointed  ....  §210  p.  344 
next  friend  of,  should  not  be  appointed  receiver  of  the 

property  of §  255  p.  380 

in  what  case  admissions  in  an  answer  made  on  behalf  of 

infant  can  be  used  against  him §  2G5  p.  395 

impeaching  a  decree  improperly  obtained  against     .     .     .  §  358  p.  527 

time  of,  to  take  appeal  or  bring  writ  of  error §  398  p.  602 

time  to   review  judgment  of  District   Court  by  Circuit 

Court,  affecting §  404  p.  611 

INFORMATION, 

upon  whose  behalf  a  motion  under  an,  can  be  made      .     .  §  197  p.  284 

to  enjoin  public  nuisance §  214  p.  308 

See  also  Bills. 

INFORMATION   AND   BELIEF, 

stating  facts  upon,  in  bill §  67  p.  114 

INFRINGEMENT, 

of  patents,  bills  to  enjoin §  77    pp.  129-131 

IN   HA  EC   VERBA, 

bills  to  contain  no  unnecessary  recitals §  08  p.  114 

INJUNCTION, 

practice  in  granting,  how  far  influenced  by  State  statute  .  §  7    pp.  9-10 

authorized  by  State  statute §  7  p.  10 

against  sale  of  municipal  property  under  execution       .     .  §11  p.  12 

pending  ejectment §11  p.  14 

against  collection  of  State  tax §  12  p.  16 

against  seizures  of  personal  property §  12  p.  16 

against  libels  rarely  granted §  12  p.  17 

against  act  by  corporation  ultra  vires,  not  granted  at  suit  of 

stranger §  12  p.  10 

slanders  rarely  if  ever  enjoined §  12  p.  17 

not  granted  against  criminal  proceedings §12  p,  17 

against  removal  of  State  or  municipal  officer §  12  p.  17 

when  not  granted  against  judgment  at  law §  12  p.  18 

against  action  at  law    . §  12  p.  18 

value  of  matter  in  dispute  in  suit  for §  16  p.  24 

person  against  whom  sought,  not  a  formal  party  ....  §  51  p.  90 
to  restrain  infringement  of  patents,  allegations  in  bills    §  77    pp.  120-131 

prayer  for  relief  in  cases  of §  83  p.  136 


756  INDEX. 

INJUNCTION  —  continued. 

if  asked  for  in  prayer  for  relief,  need  not  be  repeated  in 

prayer  for  process  ...         §  85     p.  140 

when  amendment  of  bill  does  not  dissolve §  162     p.  237 

when  granted  of  course §  196     p.  281 

when  motion  for  receiver  can  be  made  upon  motion  for  an     §  197     p.  284: 

definition,  classification,  and  objects  of §  205    p.  297 

judicial  writs,  writs  remedial,  mandatory,  prohibitory, 

provisional,  perpetual,  common,  and  special  ...     §  205     p.  297 
injunctions  to  enforce  trusts  and  other  purely  equitable 

rights §  206     pp  297-298 

preventing   disclosure   of   secret   pro- 
cesses, restraining  publication  of  let- 
ters, manuscripts,  &c.    .     .     .      §  206     pp.  297-298 
to  restrain  corporations  from  violating  their 

charters §  207     pp.  29S-300 

to  enforce  the  specific  performance  of  cove- 
nants and  other  contracts  affecting  land  §  208    pp.  300-301 
to  restrain  a  multiplicity  of  suits      .     .      §  209    pp.  301-302 
to  prevent  irreparable   injury  for  which  the 

remedy  at  law  is  inadequate;  in  general     .    §210    p.  302 

to  stay  proceedings  in  other  courts  .     .      §  211     pp.  302-305 

distinguished  from  writs  of  prohibition     §211     p.  303 

to  restrain  the  alienation  of  property     .      §  212     pp.  305-306 

to  prevent  waste §213     pp.  306-307 

11  continuance  of  a  nuisance  .      §  214     pp.  307-308 

trespass §  215     pp.  309-310 

"  infringement  of  patents       .      §  216     pp.  310-314 

authorized  by  inherent  power 

and  by  revised  statutes  .     .     §  216     p.  310 

"  infringement  of  copyrights  .      §  217     pp.  314-317 

"  unlawful  use  of  trademarks       §  218     pp.  317-318 

"  opening  of  letters §219     p.  318 

compel  the   performance   or  prevent  the 
breach  of  contracts  not  affecting  land 

§  220    pp.  318-319 
compel  the   delivery    of    personal    prop- 
erty tortiously  withheld §  221     p.  319 

authorized  by  statute §  222     pp.  319-321 

when  injunctions  will  not  issue §223     pp.  321-324 

distinction  between  the  judicial  writ  and  the  writ  remedial     §  224    p.  324 
"                "          mandatory   and   prohibitory   injunc- 
tions           §  225    pp.  324-325 

"                "          provisional  and  perpetual  injunc- 
tions   §  226     pp.  325-326 

"                "          common  and  special  injunctions   .     .     §  227     p.  326 
time   and   place   of  application  for  interlocutory  injunc- 
tions  §228    pp.  326-327 

injunctions  not  prayed  for  in  the  bill §  229     pp.  327-328 

special  practice  and  regulations  of  the  Federal  courts  in 

the  issue  of  injunctions §  230     pp.  328-330 


INDEX.  757 

INJUNCTION  —  continued. 

notice  of  application  for  interlocutory  injunction     .      §  231     pp.  330-331 
affidavits  upon  application  for  an  injunction,  requisites  §  232     pp.  331-333 
rules  of  decision  upon  applications  for  interlocutory  injunc- 
tions    §  233     pp.  333-33 1 

the  writ  of  injunction  requisites §  234     pp.  331-335 

dissolution  of  interlocutory  injunctions  in  general  .      §  235     pp.  335-337 
"           "             "                      "         for    causes    aris- 
ing after  their 
issue  .     .     §  236    pp.  237-23S 
imposing  terms  upon  the  issue,  denial,  dissolution,  or  con- 
tinuance of  an  injunction §  237     pp.  333-340 

perpetual    injunctions,    when    granted,    what    must    be 

shown §  23S    pp.  340-341 

obtained  in  a  cause  prior  to  removal  to  Federal  court,  effect 

of  removal  on  same §  392     p.  588 

what  to  be  regarded  as  value  of  matter  in  dispute  in  suit 

for §  395     p.  590 

modifying  during  appeal §  402     pp.  600-607 

INJURY, 

injunctions  to  prevent  irreparable §  210     p.  302 

IN   PERSONAM, 

decrees  in.     See  Decrees. 
IN  REM, 

property  as  conferring  jurisdiction  in  equity §      1     p.      2 

decrees  in.     See  Decrees. 
INSANITY, 

when  to  be  specifically  charged  in  bill §    G9     p.  117 

INSOLVENCY, 

of  corporation,  appointing  a  receiver  in  cases  of  ....     §  240     p.  315 
INSOLVENT   DEBTOR, 

when  necessary  party  to  suit  brought  by  or  against  as- 
signee       §    45     p.    SG 

INSPECTION, 

of  documents,  how  obtained §  372     p.  552 

INSTRUCTIONS, 

recoiver's  duty  to  apply  for §  250     p.  373 

See  also  Advice;   Charge. 
INSTRUMENTS, 

cancellation  of,  as  a  ground  of  equitable  jurisdiction  .     .     §      2     p.      4 
See  also  Documents. 
INSUFFICIENCY, 

exceptions  to  answer  for §  153     pp.  225-227 

INSUFFICIENCY    OF   FORM, 

demurrers  for §  108     p.  17G 

INSURANCE, 

specific  performance  of  contract  for §    11     p.     13 

INSURANCE   LAW, 

principles  of,  which  are  applicable  in  Federal  courts     .     .     §  375     p.  557 


758  INDEX. 

INSURANCE   POLICY, 

not  cancelled  by  bill  in  equity  after  loss §    12     p.    17 

not  collected  by  bill  in  equity §    12     p.    17 

INTEREST, 

which  is  not  considered  as  adding  to  the  value  of  matter 

in  dispute §    16     p.    24 

interest  reipuUicce  ut  sitjinis  litium,  maxim  of,  applied    .     .     §    42     p.    81 

persons  with  no,  -whether  to  be  made  parties §    43     p.    82 

in  question  of  law  involved,  does  not  entitle  person  to  be 

made  party  to  suit §    44     p.    84 

general  rules  as  to  making  persons  parties  who  have  no   .  §  41     pp.  83-85 
failure  to  have  interest  in  subject-matter  of  bill  a  ground 

of  demurrer §  108     p.  175 

on  judgments §  380    p.  5G3 

as  included  in  value  of  matter  in  dispute §  395     p.  595 

plaintiffs  united  in,  what  to  be  regarded  as  value  of  mat- 
ter in  controversy §  395    p.  596 

when  awarded  on  affirmance  by  Supreme  Court   ....     §  409     p.  623 
awarded  where  writ  of   error  or  appeal  was  taken  for 

delay §  409     p.  624 

unless  included  in  the  mandate,  cannot  be  awarded  by 

Circuit  Court  after  affirmance  by  Supreme  Court  ...     §  409     p.  624 

INTERESTED   PARTY, 

not  excluded  from  testifying §  274     p.  409 

INTERFERENCE, 

with  duties  of  receiver §  249     p.  371 

INTERLINEATIONS, 

in  answer §  151     p.  224 

INTERLOCUTORY   DISMISSAL  OF   BILLS, 

See  Dismissing  Bills  otherwise  than  at  a  Hearing. 

INTERLOCUTORY  APPLICATIONS, 

definition  and  classification §  193     p.  279 

how  interlocutory  applications  are  made  to  the  court   .     .     §  193     p.  279 

motions,  definition  and  classification  of §  194     p.  279 

of  course §195     pp.  279-280 

special,  without  notice §  196     pp.  280-282 

orders  grantable  of  course §  196     p.  281 

notices  of,  requisites,  who  may  make     .     .      §  197     pp.  282-285 

argument  of §  198     pp.  285-287 

petitions,  in  general,  distinctions  between,  and  motions  §  199     pp.  2S7-288 
for  leave  to  sue  in  forma  pauperis      .     .     .      §200     pp.  288-290 
of  intervention,  when  may  be  interposed,  requi- 
sites       §201     pp.  290-292 

form  of,  and  practice  thereupon  ....      §  202     pp.  292-293 
orders,  requisites  and  characteristics  of       ....      §  203     pp.  293-29o 

appeals  from  interlocutory §.203     p.  294 

circuits  of  judges •     §  204     p.  295 

judges  who  may  grant §  204     p.  295 

in  case  of  disability  of  other 
judges §  204     p.  296 


INDEX.  759 

INTERLOCUTORY   DECREE. 

See  Decrees. 

INTERLOCUTORY   INJUNCTION, 

notice  of  application  for §  231     pp.  330-331 

rules  of  decision  upon  applications  for §233     pp.  333-334 

dissolution  of §  235    pp.  335-337 

See  also  Injunctions. 

INTERLOCUTORY   ORDERS. 

See  Interlocutory  Applications. 

INTERMEDIATE, 

dismissal    of    bills.      See   Dismissing  Bills  otherwise   than   at  a 
Hearing. 
INTERMEDIATE   APPLICATIONS. 

See  Interlocutory  Applications. 

INTERNAL   REVENUE, 

cases §15     p.  22 

INTERPLEADER, 

•who  may  file  bills  of,  contents  of  bills  and  practice  .       §  S8     pp.  142-146 

bills  in  the  nature  of §  89     P-  ]iQ 

how  far  State  practice  as  to  granting  order  of,  is  followed      §  300     p.  530 

INTERROGATORIES. 

See  Evidence. 

INTERROGATORY   CLAUSE, 

in  bills,  rules  pertaining  to §  S2     pp.  135-136 

INTERSTATE   COMMERCE    ACT, 

compliance  with,  in  certain  cases  compellable  by  injunc- 
tion      §222    p.  321 

INTERVENOR, 

may  remove  a  cause §  *°*    P-  571 

right  of,  to  appeal §  397     p.  598 

petition  of §199     pp.  288;  §201     pp.  290-292 

See  also  Interlocutory  Applications. 

INTOXICATION, 

ground  of  relief  from  contract §11     p.  13 

INTRODUCTION, 

in  bills,  rules  relative  to,  and  form  of §66     pp.  112-113 

INTRUSION, 

information  for  an,  in  the  case  of  purprestures     ....     §  214     p.  307 

IOWA, 

divided  into  two  districts §  26    pp.  40-41 

times  and  places  of  holding  court  enum- 
erated      §  26     pp.  40-41 

statutory  limitation  of  jurisdiction  by  residence  in  .     .    note,  §  27     p.  59 
districts  of,  included  within  Eighth  Circuit     ....  §  204     p.  295 

introducing  in  evidence,  transcripts  from  certain  books  of 

the  District  Courts  in §  268     p.  401 

IRREGULARITY, 

motion  to  discharge  order  for §  197     p.  283 


760  INDEX. 

IRRELEVANT  MATTER, 

demurrer  to  relief  does  not  lie  on  account  of §  108     p.  176 

an  exception  for  impertinence  the  proper  remedy  in  such 

case §  108     p.  176 

IRREPARABLE  INJURY, 

in  junctions  to  prevent.     See  Injunctions;  Waste. 

ISSUES, 

bringing  matter  to  distinct §  67     p.  113 

testimony  taken  before  cause  is  at  issue §  282     pp.  41S-419 

"  "      after        "       "       " §  283    pp.  419-420 

testimony  taken  after  a  cause  is  at  issue  and  beyond  the 

jurisdiction  of  the  court §  285    p.  423 

when  court  may  direct  a  feigned  issue §  300     p.  446 

ISSUES   AT   LAW, 

power  of  courts  to  direct §  301     pp.  447-448 

matters  concerning  which  an  issue  is  directed      ....     §  302     p.  448 

time  when  an  issue  is  directed §  303     p.  449 

manner  of  trying §  304     pp.  449-451 

effect  of  the  finding  of  a  jury  upon  an  issue     ...     §  305     pp.  451-453 
proceedings  after  the  trial  of     ....••....§  306    p.  453 


J. 

JEFFERSON,  THOMAS, 

subpoena  duces  tecum  against,  on  trial  of  Aaron  Burr    .     .       §  98     p.  159 

JOHNSON,  PRESIDENT, 

amenability  to  process  of  Federal  courts §  98    p.  159 

JOINDER, 

of  parties  upon  a  motion §  197     p.  284 

of  causes  of  action  at  common  law,  how  far  State  practice 

respecting,  followed §  360     p.  530 

of  parties  at  common  law,  how  far  State  practice  followed   §  360     p.  530 
JOINDER   OF   PARTIES  IN  EQUITY. 

See  Bills. 
JOINT   DEFENDANTS, 

removability  of  cause  in  cases  of §  3S4    p.  571 

JOINT   PARTIES, 

what  to  be  regarded  as  value  of  matter  in  dispute  where 

one  party  sues  on  behalf  of  others §  395     p.  596 

where  they  assert  distinct  and  separate  rights      ....     §  395     p.  596 

when  must  join  in  writ  of  error  or  appeal §  397     p.  598 

JOURNAL, 

introducing  in  evidence  extracts  from  the  journals  of  the 

Senate  or  House  of  Representatives §  268    p.  400 

JUDGES, 

circuits  of §  204    pp.  295-296 

designation  of  other,  when  disabled §  204     p.  296 

whether  relative  of,  can  be  appointed  receiver      ....     §  255     p.  381 
weight  of  decisions  by  a §  298     p.  442 


INDEX.  761 

JUDGMENT, 

at  law,  when  proceedings  under,  not  enjoined  ....  §  12  p.  18 
in  limits  of  United  States,  jurisdiction  of  suits  upon  .  .  §  17  p.  25 
of  Federal  court,  jurisdiction  of  the,  to  restrain,  regulate, 

set  aside,  construe,  or  enforce §  21     p.  28 

prayer  of,  in  demurrer §117     pp.  182-183 

how  proved §  208     p.  404 

common-law  procedure  respecting,  also  connection  of  .     .     §  300     p.  530 
opening  judgment  entered  by  default,  how  far  State  prac- 
tice respecting,  followed §  300     p.  531 

suspension  of,  pending  writ  of  error §  300     p.  531 

how  far  State  practice  relative  to,  is  applicable  in  Federal 

courts §  378     pp.  500-501 

correction  of  judgments  by  courts  that  rendered  them  §  379     pp.  501-502 

of  non  prosequitur §  38S     pp.  582 

cause  improperly  removed  to  Federal  court  may  be  re- 
manded even  after  judgment §  393     p.  589 

costs  in   Supreme  Court  of  the  United  States  upon  re- 
versal of  judgment  or  decree  for  want  of  jurisdiction     .     §  393     p.  590 

releasing,  to  confer  jurisdiction §  395     p.  595 

when  can  be  executed  despite  supersedeas §  397    p.  598 

which  can  be  reviewed  by  writ  of  error  from  Supreme 

Court  to  State  court §405     p.  014 

when  interest  awarded,  an  affirmance  of §  409     p.  023 

See  also  Writs  of  Error  and  Appeals. 
JUDGMENT   CREDITORS, 

of  corporations,  appointment  of  receivers  in  suits  of     .     .     §  240    p.  344 
JUDICIAL   CIRCUITS.     See  Circuits. 
JUDICIAL  DISTRICT.     See  District  Courts. 
JUDICIAL    NOTICE, 

of  statutes  pleaded  in  bills §  08     p.  115 

JUDICIAL   POWER, 

of  the  United  States §  3     pp.  4-5 

JUDICIAL    PROCEEDINGS, 

how  proved §  2GS     p.  404 

JUDICIAL   WRITS, 

as  distinguished  from  other  forms  of  injunctions      ...     §  205    p.  297 
See  also  Injunctions. 
JUDICIARY   ACT.     See  Appendix,  pp.  053-058. 
JURAT, 

of  affidavit.     See  Evidence. 
JURISDICTION, 

definition  of  equitable       §  1     p.  1 

rise  and  history  of  equitable §  1     p.  1 

definition  of  equitable §  1     p.  1 

foundations  of §  1     p.  1 

labors  of  early  chancellors  in  widening .  §  1     pp.  1-2 

Nottingham,  Selden,  Wolsey,  More,  Bacon,  Clar- 
endon, Somers,  Erskine,  Hardwicke,  Eldon, 
Westbury,  Kent,  Story,  Taney §1     pp.  1-2 


762  INDEX. 

JURISDICTION— continued. 

denial  of  justice  at  common  law, -the  foundation  of,  originally     §  1     p.  2 

services  of  Mansfield §  1     p.  2 

distinction  between  jurisdiction  at  common  law,  and     .     .     .     .  §  1     p.  2 

property,  or  absence  of,  as  affecting §  1     p.  2 

subjects  of §  2     pp.  3-4 

beneficiaries  under  a  trust §  2     p.  3 

accident §  2     p.  3 

penalty §  2     p.  3 

forfeiture §  2     p.  3 

loss  of  documents §  2     p.  3 

mistake §  2    p.  3 

of  law §  2     p.  3 

fraud §  2     p.  3 

duress §  2    p.  3 

election  under  a  will §  2     p.  3 

adjustment  of  liabilities §  2     p.  4 

set-off §  2     pp.  2-4 

contribution §  2     p.  4 

exoneration §  2     p.  4 

marshalling  of  securities §  2     p.  4 

compelling  discovery §  2     p.  4 

perpetuation  of  testimony §  2     p.  4 

examination  of  witnesses  abroad §  2     p.  4 

satisfying  property  not  reachable  on  execution      .     .  §  2     p.  4 

preventing  threatened  breaches  of  right §  2     p.  4 

specific  performance §  2     p.  4 

preventing  multiciplicity  of  suits §  2     p.  4 

cancellation  of  instruments §  2     p.  4 

constitutional  provisions  affecting §  3     p.  4 

ambassadors §  3     p.  5 

ministers §  3     p.  5 

consuls §  3     p.  5 

distinction  between  law  and  equity  in  Federal  courts    .     .     .  §  4     pp.  4-5 

rules  affecting,  generally  stated §  5     pp.  6-8 

substantially  the  same  as  English  High  Court  of  Chancery     .        §  5     p.  6 

State  statutes  cannot  impair       §  0     pp.  8-9 

creating  new  rights  enforceable  in  Federal 

courts §  7     pp.  9-10 

as  to  mortgagor's  right  to  redeem     .     .  §  7     p.  9 
as  to  setting  aside  probate  of  will     „     .  §  7     p.  9 

as  to  quieting  title  to  land §  7     p.  9 

imposing  on  stockholder's  liability  to  credi- 
tors   §  7     p.  9 

assessments  upon  streets      .     .     .     •  §  7     p.  9 
authorizing  filing  of  creditor's  bills  ....      §  7     p.  10 
"  injunction  to  be  granted   .     .     .     §  7     p.  10 

"  guardian  to  mortgage  ward's 

estate §  7    p.  10 

State  statutes  of  limitations  affecting §  8     p.  10 

usually  followed  by  analogy  .     .      §  8     p.  10 


INDEX.  763 

JURISDICTION  —  continued. 

State  statutes  of  limitations  not  always  controlling        .     .     .     §  8     p.  10 

cannot  bar  the  United  States     .      §  S     p.  10 
effect  of,  as  to  patents  and  , 

copyrights §  8     p.  10 

property  in  custody  of  a  State  court §9     pp.  11-12 

when  Federal  Court  will 

decline  to  interfere     .     §  9     pp.  11-12 

"         "         "       "  a  Federal  court §  10    p.  12 

illustrations  of  equitable  jurisdiction  in  Federal  court  .     §  11      pp.  12-13 
"             "  cases  where  Federal  courts  declined  to  as- 
sume ecpiitable  jurisdiction    ....      §  12     pp.  15-20 
Federal  courts  which  have  jurisdiction  in  equity  enumer- 
ated          §  13    p.  20 

original  equitable  jurisdiction  of  United  States  Supreme 

Court §14     pp.  20-21 

of  Circuit  Courts §  15     pp.  21-23 

matter  in  dispute,  value §  16     pp.  23-25 

suits  arising  under  Constitution  or  laws  of  the  United 

States §  17     p.  25 

controversy  between  citizens  of  different  States    ....         §  18     p.  26 

citizenship §  19    pp.  26-27 

under  grants  of  different  States §  20     pp.  27-28 

ancillary §21     pp.  2S-29 

limitations  upon,  by  residence    ....  note,  §  22     p.  29-31;  pp.  58-63 
special  limitation  upon  Circuit  Court  for  Southern  District 

of  New  York §  23     p.  32 

in  suits  by  assignees §  24     pp.  32-34 

indorsees §  24     p.  33 

original  jurisdiction  of  the  District  Courts §  25     pp.  31-35 

territorial  jurisdiction  and  terms  of  Supreme,  Circuit,  and 

District  courts §  26     p.  35 

sources  of  Federal  equity  practice note,  §  26     p.  58 

statutes §  26     p.  56 

rules  of    United    States 

Supreme  Court  ...         §  27     p.  57 
omission  from  bills  of  defendants  not  within  the  ....         §  50     p.  92 

decree  as  against  parties  not  within  the §  50     p.  93 

when  court  will  take,  of  bills §  64     p.  Ill 

verification  to  avoid  suspicion  of  collusive,  in  suit  affecting 

rights  assertable  by  corporation §  76     p.  128 

demurrers  to §  108     p.  1 T 1 

pleas  to §  126     p.  191 

testimony  taken  after  a  cause  is  at  issue,  and  beyond  the 

jurisdiction  of  the  court §  285    p.  423 

dismissal  of  bill  for  want  of §  293     pp.  436-438 

master  taking  testimony  beyond §  313     p.  461 

costs  in  United  States  Supreme  Court,  when  judgment  or 

decree  is  reversed  for  want  of  jurisdiction  in  court  below     §  327     p.  4S0 
want  of,  in  State  court,  whether  available  in  Federal  court 

after  removal §  391     p.  586 


764  INDEX. 

J  URISDICTION  —  continued. 

as  affected  by  bringing  in  new  parties  after  removal  to 

Federal  court §  391     p.  587 

for  want  of  jurisdiction,  cause  improperly  removed  to  Fed- 
eral court  may  be  remanded §  392     p.  589 

when  appeal  may  be  taken  to  Supreme  court  of  the  United 
States  on  question  involving  the  jurisdiction,  irrespec- 
tive of  value  of  matter  in  controversy •     §  393     p.  590 

costs  in  Supreme  Court  of  United  States,  upon  reversal  of 

judgment  or  decree  for  want  of  jurisdiction  .     .     .     §393     pp.  589-590 

appeal  to  review  final  decrees  of  Circuit  Courts  in  which 

there  has  been  a  question  of  jurisdiction §  394     p.  59-1 

but  limited  by  value  of  matter  in  controversy §  391     p.  591 

releasing  judgment  to  confer §  395     p  595 

taking  testimony  within  and  without.     See  also  Evidence  ;  Writs  of 
Error  and  Appeals. 
JURISDICTION   CLAUSE, 

form  of  ... §  81     p.  134 

no  longer  considered  necessary §  81     p.  135 

in  bills.     See  Bills. 
JURISDICTIONAL   FACTS, 

evidence  to  contradict  averments  of,  when  admissible  .     .     §  293     p.  436 

JURY, 

qualifications  and  mode  of  selection §  374     p.  556 

when  jury  trials  had §  374    pp.  554-556 

appeals  from  judgments  and  decrees  of  territorial  courts  in 

cases  not  tried  by  a  jury §  394     p.  591 

See  also  Common  Law  ;  Issues  at  Law. 


K. 

KANSAS, 

constitutes  one  judicial  district §  26    p.  41 

times  and  places  of  hold- 
ing court  therein  enu- 
merated            §  26     p.  41 

districts  of,  included  within  Eighth  Circuit §  204    p.  295 

introducing  in  evidence  transcripts  from  certain  books  of 

the  District  Courts  in §  268     p.  401 

KENT,    CHANCELLOR, 

labors  of,  in  widening  jurisdiction  of  courts  of  equity  .     .  §  1     p.  2 

view  of,  as  to  multifariousness  in  bills §  73     p.  123 

KENTUCKY, 

constitutes  one  district ■ §  26    p.  41 

times  and  places  of  holding  court 

therein  enumerated     ...      §  26     pp.  41-42 

limitations  upon  Federal  jurisdiction  in notejx)  p.  32 

statutory  limitation  of  jurisdiction  by  residence  in   .     .    note,  §  27     p.  59 

district  of,  included  within  Sixth  Circuit §  204     p.  295 

KIN.     See  Next  of  Kin. 


INDEX.  765 

KINDERSLEY,    VICE-CHANCELLOR, 

statement  of  rule  by,  respecting  the  granting  of  injunc- 
tions to  restrain  trespass §  215     p.  309 

KING'S   BENCH, 

practice  in  the  court  of,   affords  outline  for  practice  at 

common  law §  360     p.  529 

KOSSUTH, 

injunction  granted  to  restrain,  from  manufacturing  paper 

currency  in  England §  223     p.  321 


L. 

LACHES, 

as  constituting  a  ground  of  demurrer       .......§  108    p.  175 

which  may  be  taken  advantage  of  at  hearing §  299     p.  445 

See  also  Delay;  Limitation. 
LADING, 

how  far  decisions  of  State  courts  relative  to  bills  of  lading 

are  binding  upon  Federal  tribunals §  375    p.  557 

LAND, 

bill  to  quiet  title  to §  7     p.  9 

alternative  relief  in  action  to  quiet  title  to §  70     p.  118 

injunctions  to  enforce  specific  performance  of  covenants 

and  contracts  affecting §  208     pp.  300-301 

injunctions  to  restrain  the  sale  of §  210     p.  302 

injunctions  to  prevent  alienations  of §  212     p.  306 

injunctions  to  compel  the   performance,  or  prevent  the 

breach,  of  contracts  not  affecting  land §  220     pp.  318-319 

practice  on  removal  of  suits  containing  controversies  be- 
tween citizens  of  the  same  State  claiming  land  under 

grants  of  different  States §  387     p.  580 

LAND   OFFICE, 

introducing  in  evidence  copies  of  papers  in §  268    p.  400 

LAND    PATENT, 

bill  to  quiet  possession  under §  11     p.  15 

bill  to  set  aside,  not  maintainable  by  private  citizen      .      §  12     pp.  17-18 
See  also  Patents. 
LANGDELL,   PROFESSOR, 

on  demurrers  to  the  discovery §  109     p.  177 

referred  to  on  practice  of  court  giving  special  leave  to  file 

double  pleas §  124     p.  188 

work  of,  on  equity  pleading,  referred  to  in  discussing  sub- 
ject of  negative  pleas §  121     p.  190 

on  admissions  and  denials  independent  of  discovery      .     .     §  146     p.  215 
opinion  of,  as  to  discovery  in  bill  demanding  account   .     .     §  118     p.  219 
LAW, 

relief  against  mistakes  of §  2    p.  3 

distinctions  between  equity  and,  in  Federal  courts    ...       §  4     pp.  5-6 
interest  in  question  of,  involved  does  not  entitle  person  to 

be  made  a  party §  44    p.  84 


766  INDEX. 

LAW  —  continued. 

bill  to  obtain  stay  of  proceedings  at    .......     .       §  64    p.  Ill 

conclusions  of,  not  to  be  stated  in  bills §  69     p.  116 

distinction  between  court  of,  and  of  equity,  in  that  the 

latter  affords  complete  relief §  1     p.  2 

mistake  of,  cannot  ordinarily  be  cured  by  amendment  .     .     §  167     p.  243 
passed  by  State  and  territorial  legislatures,  introducing  in 

evidence §  268     p  401 

dismissal  of  bill  for  plaintiff's  failure  to  elect  whether  he 

will  proceed  at  law  or  in  equity §  293     pp.  439-440 

distinction  between  costs  at  law  and  in  equity      ....     §  326     p.  477 

consolidation  at  law  and  in  equity §371     p.  550 

rules  of  decision  applicable  in  actions  at  common  law  §  375     pp.  556-557 
See  also  Issues  at  Law  ;  Practice  at  Common  Law  ;  Remedy  at 
Law;  Statutes. 

LAWS   OF   THE   UNITED   STATES, 

suits  arising  under §  15    p.  21  ;  §  11     p.  25 

suits  arising  under  Constitution  and §  17     p.  25 

See  also  Writs  of  Error  and  Appeals. 

LEACH,   VICE-CHANCELLOR, 

rule  of,  as  to  multifariousness  in  bills §  73     p.  122 

LEASEHOLD, 

amount  expended  by  tenant  on,  when  part  of  matter  in 

dispute §  395    p.  596 

LECTURES, 

injunction  to  restrain  publication  of §  206     p.  237 

LEGAL  CAPACITY  TO  SUE, 

demurrer  for  want  of §  108     p  174 

LEGATEES, 

bill  by,  against  executor §  11     p.  12 

necessary  parties  to  suits  by,  on  behalf  of  themselves  and 

others  similarly  situated §  47     p.  90 

necessary  parties  in  suits  by §  52     p.  96 

LENGTH, 

of  replication,  ancient  penalty  for  undue §  159    p.  233 

bills;  practice  of  taxing  costs  according  to,  the  origin 

of  the  common  confederacy  clause §  65     p.  112 

LETTERS, 

injunction  to  restrain  publication  of §  206    p.  298 

opening  of  .     .     .     .    §  210    p.  302;  §  219     p.  318 

LETTERS   OF  ADMINISTRATION, 

averments  as  to,  in  bill §  78     p.  132 

LETTERS  ROGATORY, 

taking  testimony  under §  285     P-  4-3 

defined,  practice  §290    pp.  432-433 

LEWDNESS, 

when  to  be  specifically  charged  in  bill §  69    p.  11/ 


INDEX.  767 

LIABILITIES, 

adjustment  of,  as  a  subject  of  jurisdiction  in  equity       ...        §  2     p.  4 
of  receiver §  251     pp.  374-576 

LIBELS, 

rarely  enjoined §  12     p  17 

whether  injunction  will  be  granted  against  publication  of  a  §  223     p.  323 

LIBELLUS, 

the  term  from  which  the  word  "  bill  "  is  derived      ...       §  64    p.  109 

LIBERTY, 

principle  that  no  question  affecting  a  person's,  to  be  decided 

without  his  presence,  applicable  to  equity §  42     p.  81 

LICENSE, 

to  use  patented  invention  reached  by  creditor's  bill    ...       §  11     p.  14 

LIEN, 

how  far  judgments  recovered  in  Federal  courts  are  a      .     .    §  378     p.  560 

LIENHOLDER, 

of  corporation,  appointing  receiver  at  suit  of §  210     p.  344 

LIENORS, 

when  necessary  parties  to  foreclosure       §  44    p.  83 

LIFE, 

principle  that  no  question  affecting  a  person's,  to  be  decided 

without  his  presence,  applicable  to  equity      .....       §  42     p.  81 

LIMITATION, 

State   statutes    of,  as   affecting    jurisdiction   of    Federal 

courts §   8     p.  10 

upon  jurisdiction  of  Federal  courts  by  residence    §  22   pp.  29-31 ;  pp.  58-63 

as  constituting  ground  of  demurrer §  108     p.  175 

statute  of,  may  be  set  up  to  bill  of  revivor  by  plea     ...    §  181     p.  265 
Federal  courts  follow  statutes  of,  in  actions  at  common  law  §  375    p.  558 

United  States  not  bound  by  State  statutes  of §  375    p.  558 

See  Laches. 

LIS   PENDENS, 

Pleaof §  129     p.  191 

State  statutes  providing  for  filing  of,  how  far  binding  upon 

Federal  tribunals S  375     p.  558 

LITTLE   AND   BROWN, 

edition  of  the  laws  and  treaties  of  the  United  States  by, 

competent  evidence §  268    p.  405 

LOCAL  INFLUENCE, 

practice  on  removal  of  cause  for  grounds  other  than  preju- 
dice or  local  influence •     •    §  385    p.  572 

practice  on  removal  of  cause  for  prejudice  or  local  influ- 

ence §  386    pp.  575-580 

LOCAL  NATURE, 

jurisdiction  in  suits  of §  22     pp.  30-31 

LORD   OF  MANOR, 

suits  against,  by  one  or  more  persons  on  behalf  of  others     .       §  49    p.  91 


768  INDEX. 

LORD   REDESDALE, 

on  bills  of  revivor  in  favor  of  creditors      ..,.,..§  177     p.  259 

LOST   DOCUMENTS, 

as  a  subject  of  relief  in  equity §  2    p.  3 

introducing  copies  in  evidence §  268     p.  402 

LOUISIANA, 

limitations  upon  jurisdiction  of  Federal  Courts  in       ...    note  on  p.  32 

divided  into  two  judicial  districts §  26     p.  42 

counties  and  times  and 
places  of  holding  court 
therein  enumerated  .    §  26     pp.  42-43 
districts  of,  included  within  Fifth  Circuit §  204    p.  295 

LOWELL,   JUDGE, 

on  power  of  courts  to  protect  patents  by  injunction    ...  §  216  p.  311 
view  of,  as  to  granting  injunction  to  restrain  violation  of 

negative  promise §  220  p.  319 

LUNATICS, 

capacity  to  file  bills  in  equity §  28     p.  61     §  33  p.  67 

suits  against §  40  p.  79 

suing  alone,  ground  of  demurrer §  108  p.  174 

liberal  amendments  in  favor  of §  160  p.  234 

appointing  receiver  of  property  of §  210  p.  344 

time  of,  to  bring  appeal  or  writ  of  error §  398  p.  G02 

time  to  review  judgment  of  District  Court  by  Circuit  Court 

affecting        §  404  p.  611 


M. 

MAINE, 

constitutes  one  judicial  district §  26     p.  43 

times  and  places  of  holding 

court  therein  enumerated        §  26     p.  43 
districts  of,  included  within  First  judicial  Circuit      .     .     .    §  204     p.  295 

MALINS,   VICE-CHANCELLOR, 

on  amending  petitions  for  intervention §  202     p.  293 

MANAGER, 

English  term  for  receiver       §  239     p.  312 

MANAGING   DIRECTORS. 

See  Corporation;  Director;  Stockholder. 

MANDAMUS, 

when  to  be  applied  for  by  attorney-general  instead  of  in- 
junction,  against  corporations  violating  their  charters     §  207     p.  299 
when  injunction   will  not  be   issued   staying  application 

for  a §  211     p.  304 

principles  regulating  issuance  of §  363     pp.  533-537 

practice  on  application  for     . §  364     pp.  537-539 

to  compel  judge  to  allow  an  appeal      ........§  401     p.  605 

included  in  the  term  "  suit,"  for  the  purpose  of  a  writ  of 

error  from  the  Supreme  Court  to  State  court     ....     §  405     p.  614 


INDEX.  769 

MANDATES.     See  Enforcement  of  Decrees  and  Orders. 
MANDATORY   INJUNCTIONS, 

distinguished  from  other  forms §  205     p.  297 

See  also  Injunctions. 
MANSFIELD,  LORD, 

abolishing  former  English  practice  of  bringing  motions  to 

a  hearing §  198    p.  285 

MANUFACTURE, 

injunction  to  prevent  disclosure  of  the  secrets  of  a     .     .     .    §  206     p.  297 
MANUSCRIPTS, 

injunction  to  restrain  publication  of §  206     p.  297 

MARRIAGE   CONTRACT, 

bill  to  cancel §  11     p.  13 

value  of  matter  in  dispute  in  suit  to  cancel §  16     p.  24 

MARRIED   WOMEN, 

incapable  of  filing  bills  in  equity  in  their  own  right    §§  28,  31     pp.  64-65 

suits  against §  41     p.  80 

suing  alone,  ground  of  demurrer §  108     p.  174 

MARSHAL, 

bill  to  obtain  a  determination  of  rights  of  a  claimant  to 

fund  in  hands  of  . §  64     p.  Ill 

death,  removal,  or  expiration  of  term  of,  after  taking  prop- 
erty in  execution §  380     p.  563 

fees  of.     See  Costs. 

MARSHALL,  CHIEF  JUSTICE, 

ordering  a  subpoena  duces  tecum  against  Thomas  Jefferson, 

on  trial  of  Aaron  Burr      .  §  98     p.  159 

MARSHALLING   SECURITIES, 

as  a  subject  of  jurisdiction  in  equity §  2     p.  4 

MARYLAND, 

constitutes  one  judicial  district §  26     p  43 

times  and  places  of  holding 

court  therein  enumerated      .  §  26     p.  43 

districts  of,  included  within  the  Fourth  Circuit §  204     p.  295 

MASSACHUSETTS, 

constitutes  one  judicial  district §  26     n    13 

times  and  places  of  holding 

court  enumerated   .     .     §  26     pp.  43-4  4 
the  districts  of,  included  within  the  First  Circuit  .     .    §  204     pp.  295-296 
MASTER, 

reference  to,  to  hear  testimony  and  state  facts  where  the 

latter  are  voluminous,  on  application  for  an  injunction  .     §  217     p.  315 
appointment  of  receiver  usually  no  longer  referred  to     .     .     ^  2'ii     p.  379 

passing  accounts  of  receiver §  254     p.  379 

when  may  be  appointed  receiver t;  255     p.  380 

passing  receiver's  accounts §  257     p  383 

fixing  compensation  of  receiver §  2.">8     p.  381 

reference  to,  to  take  accounts  or  assess  damages  ....     §300     p.  416 

references  to,  in  general §  307     p.  454 

49 


770  INDEX. 

MASTER  —  continued. 

who  may  be  appointed  master §  30S     p.  455 

bringing  on  a  reference  before §  3U9     p.  455 

duties  of  master      ...     §  309     pp.  455-456 
master  appointing  day,  form  of  memorandum       ....     §  309     p.  456 

parties  entitled  to  attend  a  reference §  310     pp.  456-457 

proceedings  before  master  in  general §  311     pp.  457-458 

state  of  facts §  312     pp.  459-460 

evidence  before §  313     pp.  460-461 

reports  and  compensation §  314    pp.  461— 402 

exceptions  to  reports §  315     pp.  462-463 

sales  by §  316    pp.  463-465 

permitting  master  under  Lord  St.  Leonards'  Act  to  exe- 
cute deed  or  other  written  instrument   in  the  name  of 

party  who  refuses  to  do  so      . §  349     pp.  511-512 

how  far  decisions  in  State  courts  upon  the  law  of  master 

and  servant  are  binding  in  Federal  tribunals    ....     §  375     p.  557 
MATTER   IN   DISPUTE, 

value  of,  necessary  to  confer  jurisdiction §  16     pp.  23-25 

value  of,  in  suit  for  accounting §    16     p.    24 

to  cancel  paper  purporting  to  be  marriage  contract  ...     §    16     p.    24 
value  of,  on  suit  by  parties  with  common  interest     .     .     .     §    16     p.    24 

value  of,  in  suit  on  behalf  of  a  class §    16     p.    24 

that   court    has   no   jurisdiction   for  lack  of  value  of,  a 

ground  of  demurrer §  108     p.  175 

value  of,  as  affecting  removal  of  cause §385     p.  575 

value  of,  as  affecting  removal  of  suits  containing  contro- 
versies between  citizens  of  the  same   State,    claiming 

land  under  grants  of  different  States §  387     p.  580 

value  of,  as  affected  by  subsequent  events  in  relation  to 

right  to  remove  cause  to  Federal  court §  391     p.  5S7 

when  appeal  to  Supreme  Court  of  the  United  States  au- 
thorized irrespective  of  value  of  matter  in  dispute     .     .     §  393     p.  590 

as  regulating  right  to  appeal .     .     .     §  394     p.  592 

value  of.  as  affecting  appeal  to  review  final  decree  of  Cir- 
cuit Courts  in  which  there  has  been  a  question  of  juris- 
diction      §  394     p.  594 

as  affecting  right  to  appeal  to  Supreme  Court  of  United 

States      . §  395     pp.  594-597 

value  of,  immaterial,  on  writ  of  error,  from  Supreme  Court 

t>">  State  court  on  account  of  Federal  question    ....     §405    p.  616 
MATTER    SUBSEQUENT, 

bill  to  impeach  decree  for §  64     p.  110 

MAXIMS 

interest  reipublicae  ut  sit  finis  litium §  42     p.    81 

utile  per  inutile  non  vitiatur §  68     p.  11 6 

he  who  seeks  equity  must  do  equity,  as  applied  to  plead- 
ings      ' §  84    p.  138 

maxima  pars  eorum  quae  scimus  est  minima  eorum  quae  igno- 
ramus      §  143    p.  210 

VtCtus  victori  in  expensis  condemnatus  est §  327     p.  477 


INDEX.  771 

MEDICAL   MAN, 

testimony  of,  as  to  information  acquired  professionally     .     §271     p.  410 

MEMBER, 

of  corporation,  when  a  proper  party  to  suit  against,  under 

English  practice §  43     p.  82 

parties  to  suits  by  members  of  unincorporated  associa- 
tion on  behalf  of  themselves  and  others  similarly  situ- 
ated              §47     p.  89 

See  also  Corporation;   Stockholder. 
MERCHANTS'    ACCOUNTING, 

as  a  subject  of  equity  jurisdiction §  11     p.  14 

MICHIGAN, 

divided  into  two  districts §  26     p.   11 

districts  enumerated  and  described  §26  pp.  44-45 
statutory  limitation  of  jurisdiction  by  residence  in  note,  §  27  pp.  59-60 
districts  of,  included  within  Sixth  Circuit §  201     p.  295 

MILLER,   JUSTICE, 

on  appointment  of  receivers  over  insolvent  railroads      .     .     §  244     p.  357 

MINISTERS, 

jurisdiction  of  cases  affecting §  3     pp.  4-5 

original  jurisdiction  of  United  States  Supreme  Court  in 

controversies  affecting §  14     pp.  20-21 

writ  of  ne  exeat  republica  against,  or  servant  of    ....     §  262     p.  390 
See  also  Ambassadors. 

MINNESOTA, 

constitutes  one  judicial  district §  26     p.  45 

times  and  places  of  hold- 
ing same  enumerated     .         §  26     p.  45 

districts  of,  included  within  Eighth  Circuit §  204     p.  295 

introducing  in  evidence  transcripts  from  certain  books  of 

the  District  Courts  in §  268     p.  401 

MINORS.     See  Infants. 

MISCONDUCT, 

removal  of  receiver  for §  259     pp.  385-387 

MISCONDUCT    IN    OFFICE, 

when  to  be  specifically  charged  in  bill §  69     p.  117 

MISJOINDER. 

of  parties  plaintiff,  a  ground  of  demurrer §  108     p.  175 

objection  on  account  of.  will  not  prevent  appointment  of 

receiver §  252     p.  377 

See  also  Bills  ;  Multifariousness. 

MISREPRESENTATION, 

not  ground  for  bill  in  equity  to  recover  damages  alone      .         §  12     p.  17 

MISSISSIPPI, 

divided  into  two  districts §  26     p.  45 

subdivisions    and     counties     of 

same  enumerated  ....      §  26     pp.  45-46 
districts  of,  included  within  Fifth  Circuit §  204     p.  295 


772  INDEX. 

MISSOURI, 

divided  into  two  districts §  26     p.  4G 

times  and  places  of  holding  court 

in,  enumerated §  26     pp.  46-47 

statutory  limitations  of  jurisdiction  by  residence  in  note,  §  27     pp.  60-61 
districts  of,  included  within  Eighth  Circuit §  204     p.  295 

MISTAKE, 

as  a  subject  of  relief  in  equity §  2     p.  3 

essentials  of §  2     p.  3 

not  ground  for  bill  in  equity  to  recover  damages  alone      .         §  12     p.  17 

in  writs  of  error §  399     p.  603 

See  also  Correction  of  Decree  otherwise  than  by  Appeal. 

MISTAKE   OF  LAW, 

when  relieved  in  equity §  2     p.  3 

omission  due  to  a,  cannot  ordinarily  be  cured  by  amend- 
ment       .     §  167     p.  244 

MITFORD, 

classification  by,  of  demurrers  to  relief §  108     pp.  174-177 

MODELS, 

used  as  exhibits  in  court  below §  403     p.  608 

MODIFICATION, 

of  judgment  by  courts  that  rendered  them  .  .  .  §  379  pp.  561-562 
by  Supreme  Court  of  judgment  appealed  from     ....     §  409     p.  623 

MONDAY, 

first  Monday  of  month,  rule-day  in  Circuit  and  District 

Courts §  195     p.  280 

motion  day  in  United  States  Supreme  Court §  406     p.  616 

MONEY, 

when  interest  awarded  on  affirmance  of  judgment  or  de- 
cree for  the  payment  of §  409     p.  623 

MONOPOLIES, 

injunctions  to  restrain §  207     p.  -98 

when  injunction  will  not  be  issued  to  assist  in  maintaining     §  223     p.  324 

MONTANA, 

constitutes  one  district §  26     p.  47 

districts  of,  included  within  Ninth  Circuit .  .  .  .  .  •  §  204  p.  296 
time  within  which  causes  to  be  docketed  in  United  States 

Supreme  Court  in  case  of  appeals  and  writs  of  error  from     §  403     p.  608 

MORE,    SIR   THOMAS, 

labors  of.  in  widening  jurisdiction  of  courts  of  equity  .  .  .  §  1  P-  2 
practice  of  signing  bills,  originating  in  time  of  ...  .  §  86  p.  141 
present  practice  relative  to  subpoena  to  appear  and  answer, 

originated  in  time  of §  92     p.  150 

MORTGAGE, 

of  ward's  estate  by  guardian §  '     p.  10 

who  necessary  parties  to  bill  for  foreclosure  .  .  .  .  .  §44  p.  83 
whether  prior  incumbrancers  are  necessary  parties  to  suit 

to  compel  execution  of  mortgage     . §  53     p.  101 

bill  for  redemption  of,  what  to  contain §  84     p.  138 

See  also  Equity  of  Rkdemption;    Foreclosure. 


INDEX.  77 


6 


MORTGAGEE, 

rights  of §  6     pp.  8-9 

of  corporations,  appointing  receivers  at  suit  of     ....     §  2I(J     p.  314 

MORTGAGOR, 

rights  of §  6    pp.  8-9 

State  statute  giving  right  to  redeem  enforceable  in  equity  §  7     p.  9 

who  has  sold  equity  of  redemption,  when  necessary  party 

to  bill  of  foreclosure §  44     p.  84 

whether  necessary  party  in  suits  affecting  property.     See  Parties. 

MOTION, 

for  new  trial §  376     p.  559 

for  correction  of  judgment  by  same  court  that  rendered  it      §  379     p.  562 

renewing,  after  removal  to. Federal  court §  391     p.  5S7 

to  dismiss  appeals  or  writs  of  error    ......§  406     pp.  616-617 

See  Interlocutory  Applications  and  Petitions. 

MULTIFARIOUSNESS, 

of  bill §§  71-75    pp.  119-127 

when  raised  by  demurrer       §  108     p.  176 

objection  of,  when  raised  by  plea §  128     p.  192 

objection  on  account  of,  not  to  prevent  appointment  of 

receiver §  252     p.  377 

MULTIPLICITY   OF   SUITS, 

as  a  ground  of  equitable  jurisdiction §  2     p.  4 

that  defendant  may  be  harassed  by,  a  ground  of  demurrer     §108     p.  1  7-j 

injunctions  to  restrain §  209     pp.  301-302 

See  also  Nuisance. 
MUNICIPAL   BONDS, 

bill  by  holder  of §  11     p.  12 

how  far  decisions  of  State  courts  relative  to,  are  binding 

upon  Federal  tribunals §375     p.  557 

See  Town  Bonds. 

MUNICIPAL   CORPORATION, 

bill  to  enjoin  sale  of  property  in  execution §11     p.  12 

bill  by  city  to  establish  right  to  levy  duty §  49     p.  92 

See  Mandamus;  Taxes. 

MUNICIPAL   OFFICERS, 

removal  not  enjoined         =     .     .     .         §12     p.  17 

MUNICIPAL   PROPERTY, 

when  receiver  cannot  be  appointed  over $  214     p.  o^ti 


N. 

NAME, 

petition  for  intervention  to  state  name  of  petitioner      .     .     §202    p.  202 

NARRATIVE, 

testimony  taken  by  examiner  to  be  in  the  form  of  a      .     .     §  2S4     p.  421 

NARRATIVE   PART, 

of  bill    ... §07     pp.  113-114 


774  INDEX. 

NATIONAL   BANK, 

cases  affecting §  15     p.  21 

suits  by  or  against §  17     p.  25 

appointing  receivers  of  property  of §  240     p.  344 

NATIONAL   BANKING   ASSOCIATION, 

introducing  in  evidence  certificate  of  organization    ...     §  268     p.  399 

NEBRASKA, 

constitutes  one  judicial  district §  26     p.  47 

times  and  places  of  holding 
courts  therein  enumerated         §  26     p.  47 
district  of,  included  within  Eighth  Circuit §  204     p.  295 

NECESSARY   PARTIES. 

See  Defendant;  Parties;  Plaintiff. 
NE   EXEAT  REGNO, 

prayer  for  relief  when  writ  of,  is  asked §  83     p.  136 

if  writ  of,  is  asked  for  in  prayer  for  relief,  need  not  be  re- 
peated in  prayer  for  process §  85     p.  140 

NE   EXEAT   REPUBLICA, 

writs  of,  usually  granted  ex  parte §196     p.  281 

writ  of,  defined §  261     p.  389 

when  it  will  issue §  261     p.  389 

by  whom  to  be  issued §  261     p.  389 

against  "     "  "        §  262     pp.  390-391 

practice  in  obtaining §  263     pp.  391-304 

form §  263     p.  392 

See  Ne  Exeat  Regno. 

NEGATIVE   PROMISE, 

injunction  to  restrain  violation  of §  220     p.  319 

NEGLECT, 

dismissal  of  bill  for  want  of  prosecution      ....      §  292     pp.  435-436 

NEGLIGENCE, 

no  relief  against  mistake  when  caused  by §  2     p.  3 

liability  of  receiver  for §251     p.  375 

decisions  upon  law  of,  in  State  courts,  how  far  binding  in 

Federal  courts §  375     p.  557 

NEGOTIABLE   INSTRUMENTS, 

how  far  decisions  of  State  courts  relative  to,  are  binding 

upon  Federal  tribunals §  375     p.  557 

NEGOTIATION   OF   NOTES, 

injunction  to  restrain §  210     p.  302 

NEVADA, 

constitutes  one  judicial  district §  26     p.  48 

times  and  places  of  holding 
court  enumerated .     .     .         §  26     p.  48 
districts  of,  included  within  Ninth  Circuit  ......§  2U4     p.  296 

time  within  which  cause  to  be  docketed  in  United  States 
Supreme  Court,  in  case  of  appeals  or  writs  of  error 
from §  403    pp.  608,  609 


INDEX.  775 

NEW   FACTS. 

See  Coukkction  of  Decree  otherwise  than  by  Appeal;  Sup- 
plemental Bill. 
NEW   HAMPSHIRE, 

constitutes  oue  judicial  district §  20     p.  48 

times  and  places  of  holding 
court  therein  enumerated         §  26     p.  48 
the  districts  of,  included  within  the  First  Circuit      .     .     .     §  204     p.  295 

NEW  JERSEY, 

constitutes  one  judicial  district §  26     p.  48 

times  and  places  of  holding 
courts  therein  enumerated         §  26     p.  48 

practice  in  taking  bills  pro  confesso §  101     p.  168 

districts  of,  included  within  the  Third  Circuit     ....     §  204     p.  295 
NEW   MEXICO, 

time  within  which  cause  to  be  docketed  in  United  States 

Supreme  Court,  in  case  of  appeals  or  writs  of  error  from     §  403     p.  008 

NEW    PARTIES, 

when  allowed  to  intervene §201     p.  291 

bringing  in,  as  affecting  jurisdiction  afterremoval  of  cause 

to  Federal  court §  391     p.  5S7 

NEW    REMEDIES, 

in  equity §  1     p.  1 

NEW   TRIALS, 

motions  for,  common-law  procedure  respecting     ....     §  SCO     p.  5^0 

principles  regulating  the  granting  of §  376     p.  559 

stay  of  execution  to  file  petition  for §  3S0     p.  564 

effect  of  granting,  on  former  judgment §  380     p.  504 

judgment  ordering,  cannot  be  reviewed  by  writ  of  error 

from  Supreme  Court  to  State  court      .......§  405    p.  014 

NEW   YORK, 

special  limitation  upon  jurisdiction  of  Circuit  Court  for 

Southern  District  of §  23    p.  32 

divided  into  three  districts §  26    p.  48 

counties  and  times  and  places 
of  holding  court  therein  enu- 
merated       §  20     pp.  I1-    11 

the  districts  of,  included  within  the  Second  Circuit .     .     .     $  201     p.  295 
NEXT   Fill  END, 

appearing  for  infant §  39     p.  79 

expenses  of,  how  payable §  39    p.  79 

petition  for  appointment  of §199     p.  288 

NEXT   OF    KIN, 

bill  against  sureties  of  administrator §  11     p.  12 

necessary  parties  to  suits  by  one  of,  and  on  behalf   of 

others  similarly  situated §  47     p.  90 

necessary  parties  in  suits  by §  52     p.  96 

NINTH    CIRCUIT, 

districts  included  in §204    p.  296 


77G  INDEX. 

NISI, 

order,  defined §  198    p.  287 

decrees.     See  Decrees. 

NOMINAL  DAMAGES, 

costs  where  master  reports  in  favor  of  plaintiff  for  nom- 
inal damages §  327     p.  479 

NON   EST  INVENTUS, 

attachment  returned §  149     p.  221 

NON   PROSEQUITUR, 

judgment  of §  388     p.  582 

NON-RESIDENTS, 

jurisdiction  over §  22     pp.  29-31 

suing  in  forma  pauperis §200     p.  289 

when  may  be  compelled  to  give  security  for  costs     .      §  338    pp.  498-499 

NONSUIT, 

plaintiff  may  consent  to §  374     p.  556 

trial  judge  has  no  power  to  order  compulsory §  374     p.  556 

NORTH   CAROLINA, 

divided  into  two  judicial  districts §  26     p.  49 

counties  and  times  and 
places  of  holding  court 
therein  enumerated      §  26     pp.  49-50 

districts  of,  included  within  Fourth  Circuit §  204     p.  295 

introducing  in  evidence  transcripts  from  certain  books  of 
the  Circuit  and  District  Courts  in §  268    p  401 

NORTH  DAKOTA, 

constitutes  one  district §  26     p.  50 

district  of,  included  within  Eighth  Circuit §  204     p.  295 

NOTE, 

not  collected  by  bill  in  equity §  12     p  17 

injunctions  to  restrain  negotiation  or  indorsement  of     .     .  §  210     p.  302 

prevent  transfer  of §  212     p.  305 

NOTICE, 

when  to  be  specifically  charged  in  bill §  69     p.  117 

of  motions §§  195-197     pp.  280-285 

of  application  for  interlocutory  injunction  ....    §  231     pp.  330-331 

usually  required,  on  appointment  of  receiver §  252     p.  378 

of  application  for  attachment  for  contempt      ,     .     .     §  342     pp.  504-506 
of  trial  or  argument,  how  far  State  practice  respecting,  fol- 
lowed  §  360     p.  530 

for  production  of  books  and  papers  at  trial §  372    p.  553 

of  appeal  in  prize  causes §  398     p.  601 

of  motion  to  dismiss  appeal §  406     p   616 

NOTTINGHAM,   LORD, 

labors  of,  in  widening  jurisdiction  of  courts  of  equity  .     .  §  1     p   1 

on  bills  of  review §  356    p   522 


INDEX.  777 

NUISANCE, 

necessary  parties  in  suit  to  enjoin §  52     p.  98 

owners  of  adjacent  property  uniting  to  enjoin      ....       §72     p.  122 

injunctions  to  suppress §  210     p.  302 

injunctions  to  prevent  continuance  of §  214     pp.  307-308 

NUMBER, 

rules  where  parties  are  very  numerous §  48     p.  90 

NUMBERING, 

paragraphs  in  bills §  G7     p.  113 

NUMEROUS   PARTIES, 

rule  in  case  of §  48     p.  90 

who  necessary  in  case  of §  40     p.  88 

NUNC   PRO   TUNC, 

allowing  bond  to  be  filed,  on  removal  of  cause  to  Federal 
court . §  391     p.  588 


O. 

OATH, 

waiver  of  answer  under §84    p.  138;  §148     p.  217 

to  answer §  151  pp.  223-224 

before  whom  may  be  taken §  151  pp.  223-224 

form  of      .     .     1 §  151     p.  224 

when  must  be  made  to  the  truth  of  proposed  amendments  §  168     p.  244 
to  be  attached  to  answer  denying  facts  stated  in  petition 

for  intervention §  202     p.  293 

affirmation  in  lieu  of §  270     p.  406 

when  master  required  to  take §  311     p.  458 

OBJECTIONS, 

which  cannot  be  made  at  the  hearing §  299     pp.  444-145 

OBSTRUCTING, 

receiver §  249     p.  371 

OFFER   OF   EQUITY, 

a  failure  by  plaintiff  to  make  au,  demurrable §  108     p.  176 

OFFERS, 

in  bills §  S4     pp.  137-140 

omission  of,  when  ground  for  demurrer §  84     p.  140 

OFFICE, 

removal  from §  15    p.  22 

suits  to  receive  possession  of §15     p.  22 

misconduct  in,  when  to  be  specifically  charged  in  bill  .     .  §  69     p.  117 

OFFICER, 

not  compelled  by  bill  in  equity  to  perform  duty  ....  §  12     p.  17 

of  State  or  municipality,  removal  not  enjoined    ....  §  12     p.  17 
of  a  corporation,  when  could  be  parties  to  suit  against 

corporation  under  English  practice §  43     p.  82 

when  injunctions  will  not  be  issued  to  stay  the  removal  of  §  211     p.  304 

of  corporation,  not  usually  appointed  receiver      ....  §  255     p.  380 

of  House  of  Congress,  removal  of  suit  against      ....  §  3S3  p.  56 1 ; 

§  388  pp.  5S0-5S2 


778  INDEX. 

OFFICER  OF  UNITED   STATES, 

jurisdiction  of  actions  at  common  law  against      ....         §  15     p.  22 
See  also  Revenue  Officers. 
OHIO, 

divided  into  two  districts §  26     p.  50 

counties  and  times  and  places  of 
holding  court  therein  enum- 
erated   §  2G     pp.  50-51 

statutory  limitations  of  jurisdiction  by  residence  in  note,  §  27     pp.  01-03 
districts  of,  included  within  Sixth  Circuit §  204     p.  295 

OMISSION. 

from  bills,   of  defendants  not  within  jurisdiction  of  the 

court §  50     p.  92 

in  address  and  introductory  clause  of  bills,  how  taken  ad- 
vantage of    §  G6     p.  113 

of  proper  parties,  reasons  for,  to  be  averred §  76     p.  127 

which  should  be  taken  advantage  of  by  demurrer     .     .     .     §  110     p.  178 

OPEX   COURT, 

agreements  made  in,  using  as  admissions §  265    p.  396 

OPENING, 

on  hearing §  297     p.  441 

argument  in  Supreme  Court §  408     p.  622 

OPENING   OF   COURT, 

words  usually  employed  in  notices  of  motion §  197     p.  283 

OPENING  OF   LETTERS, 

injunctions  to  prevent §  219     p.  318 

OPINION, 

review   by   writ  of    error  on    certificate   of    division    of 

opinion §  394     p.  594 

division  of §  390     pp.  597-598 

copies  of,  filed  in  the  case  to  be  annexed  to  and  transmit- 
ted with  record  on  appeal §  403     p.  607 

ORAL   TESTIMONY. 

See  Evidence  ;  Pkactice  at  Common  Law. 

ORDER, 

of  State  court  on  removal  of  cause §  385    p.  574 

in  cause  prior  to  removal  to  Federal  court,  effect  of  re- 
moval on  same §  392     p.  588 

See  also  Correction  of  Decree  otherwise  than  by  Appeal;  Decrees; 
Enforcement  of  Decrees  and  Orders  ;  Interlocutory  Applica- 
tions. 

ORDER   BOOK, 

entering  order  in,  that  bill  be  taken  pro  confesso       .     .     .     §  111     p.  179 
motions  to  be  entered  in  order  book §  195     p.  280 

OREGON, 

constitutes  one  judicial  district §  26     p.  51 

times  and  places  of  holding 
court  enumerated     ...         §  26     p.  51 


INDEX.  779 

OREGON  —  continued. 

districts  of,  included  within  Ninth  Circuit §  201     p.  296 

time  within  which  cause  to  be  docketed  in  United  States 
Supreme  Court,  in  case  of  appeals  or  writs  of  error 
from §  403     pp.  G0S-G09 

ORE  TENUS, 

demurrers .....§  116    p.  182 

costs  ou  sustaining  demurrer §  123     pp.  18G-187 

ORIGTN, 

of  jurisdiction  in  equity §  1     p.  1 

ORIGINAL   BILLS. 

See  Bills. 

ORIGINAL  JURISDICTION,- 

of  Federal  Supreme  Court §  3     p.  5;  §  14     pp.  20-21 

See  also  Jurisdiction. 

ORIGINAL  PAPERS, 

when  required  for  examination  in  Supreme  Court   ...     §  403     p.  607 

OTHER   SUITS, 

that  defendant  is  in  danger  of  being  harassed  by,  a  ground 

of  demurrer §  108     p.  175 

OUTLAWRY, 

plea  of §  111     p.  208 


P. 

PAIN, 

defendant  may  demur  to  bill  if  bis  answer  subjects  him  to      §  109     p.  177 

PAIS, 

pleas  of  matter  in §  133     pp.  199-200 

PAPERS, 

loss  of,  as  a  subject  of  relief  in  equity §  2     p.  3 

introduction  of,  in  evidence §  2G3     pp.  398-406 

production  of  on  trial §  ;j72     p.  oo2 

PARAGRAPHS, 

in  bills.     See  Bills. 

PARENS   PATRIAE, 

jurisdiction  of  Federal  courts  not  like  the  Lord  Chancel- 
lor's prerogative  as §  5     p.  6 

PARISHIONERS, 

suits  by  one  or  more  on  behalf  of  others §  49     p.  91 

PARSON, 

suits  against,  by  one  or  more  persons  on  behalf  of  others  >  V.)     p.  01 

PARTIES.     See  §  60,  pp.   104-lU.j,  lor  summarized  statement  of  the  rules 
relating  to  this  subject, 
citizenship  of  formal  parties  does  not  affect  jurisdiction    .         §  18     p.  2G 

to  bills  in  equity,  who  may  be §  28    p.  64 

all  persons  to  be,  who  are  directly  interested §42     p.  81 

may  be  made  defendants  if  they  refuse  to  join  as  plaintiffs         §  12     p.  81 


780  INDEX. 

PARTIES  —  continued. 

principle  that  no  proceedings  to  take  place  affecting  a  per- 
son's rights  except  in  his  presence  applied §  42  p.  81 

who  bound  by  a  decree §  42  p.  bl 

decision  to  provide  for  all  the  rights  which  different  per- 
sons have  in  the  matters  decided §  42  p.  81 

principle  of  interest  reipublicae  ut  sit  finis  litium,  applied      .  §  42  p.  81 
distinction  between  court  of  law  and  equity,  in  that  the 

latter  affords  complete  relief  . §  42  p.  82 

illustration  of,  joining  surety  with   principal   liable   for 

money §  42  p.  82 

heir  with  personal  representative 
in    suit    to    enforce    covenant 

against  ancestor      .....  §  42  p.  82 

parties  with  no  interest  in  the  subject-matter  of  the  suit  .  §  43  p.  82 

English  practice §  43  p.  82 

suits  against  corporations,  —  officers,  book-keeper,  members  §43  p.  82 

Eldon's  remarks  upon §  43  p.  83 

Talbot's      "          "        §  43  p.  83 

agents,  auctioneers,  arbitrators,  and  attorneys,  when  to  be 

made  parties  in  suits  against  principals §  43  p.  83 

cases  of  fraud,  making  parties  to,  pay  costs §  43  p.  83 

persons  who  on  account  of  lack  of  interest  need  not  be 

made  parties §  44    pp.  83-85 

who  are  not  interested §  44  p.  83 

who  claim  under  inconsistent  titles §  44  p.  83 

prior  incumbrances  on  a  bill  for  foreclosure       ...  §  44  p.  83 

suits  for  specific  performance §  44  p.  84 

suits  by  assignee §  44  p.  84 

mortgagor  who  has  sold  equity  of  redemption  ...  §  44  p.  84 

who  has  a  mere  interest  in  question  of  law  involved  .  §  44  p.  84 

plaintiffs  having  a  joint  and  several  demand §  44  p.  So 

Shadwell's  remarks  on  rule  fifty-one  in  chancery      ...  §  44  p.  85 
rule  fifty-one  in  chancery  only  applicable  where  several 

persons  are  liable  m  different  characters §  44  p.  85 

cases  where  the  law  has  furnished  a  representative  .     .      §  45    pp.  85-88 

cases  of  executors,  administrators §  45     pp.  85-SG 

bankrupts,  insolvent  debtor,  creditors,  in  suits  by 

assignee §  45  p.  8G 

creditor  of  an  estate,  in  suit  by  receiver  ....  §  45  p.  80 
surviving  parties,  in  suits  by  or  against  strangers 

affecting  partnerships §  45  p.  86 

tenant  in  tail .     .     .     .  §  45  p.  86 

tenant  for  life §  45  p.  86 

trust  property §  45  p.  86 

beneficiaries §  45    pp.  86-87 

trustees §  45     pp.  86-87 

under  railroad  mortgagp    .  §  45  p.  89 
stockholders,  upon  suits  for  accounting  against 

corporation §  45  p.  88 

members  of  unincorporated  associations      ...  §  45  p.  88 


INDEX.  781 

PARTIES  —  continued. 

suits  by  a  complainant  on  behalf  of  himself  and  others 

similarly  situated §  46     pp.  88-80 

Story's  classification .     .     .     .  §  46  p.  88 

illustrations  of §  47     pp.  89-90 

stockholders  of  corporations §  47  p.  89 

creditors §  47  p.  90 

members  of  unincorporated  associations      ...  §17  p.  89 

railroad  bondholders §  47  p.  90 

legatees §  47  p.  90 

next  of  kin §  47  p.  90 

partners §  47  p.  90 

one  of  a  class  for  whom  a  charity  was  founded    .  §  47  p.  90 

one  of  crew  of  privateer  seeking  prize  money  .     .  §47  p.  90 

suits  against  one  or  more  of  a  class §  48     pp.  90-91 

numerous  parties §  48  p.  90 

committee  representing  other  litigants §  48  p.  90 

members  of  clubs  and  unincorporated  associations      .  §  48  p.  90 

stockholders  of  corporation §  48  p.  90 

general  rule  stated  where  parties  are  very  numerous  .     §  48  p.  91 
suits  by  or  against  one  or  more  as  representatives  of  a  class 

claiming  a  common  right §  49     pp.  91-92 

general  rule §  49  p.  91 

estates  coming  from  a  common  source §  49  p.  91 

tenants §  49  p.  91 

parishioners §  49  p.  91 

lord  of  the  manor §  49  p.  92 

holders  of  certificates  of  indebtedness §  49  p.  92 

purchaser  of  lands §  49  p.  92 

city  to  levy  duty §  49  p.  92 

omission  of  defendants  not  within  jurisdiction  of  the  court  §  50     pp.  92-95 

whether  decree  binding  against       §  50     pp.  93-94 
formal  parties   who  may  be  omitted  when  without  the 

jurisdiction §  51  p.  95 

husband,  in  suit  by  wife  in  certain  cases §  51  p.  95 

trustees  of  railroad  mortgage  not  opposing  bondhold- 
er's suit §  51  p.  95 

person  against  whom  injunction  is  sought  is  not    .     .  §  51  p   96 

parties  whose  interest  is  separable §  52     pp.  96-98 

trustee  or  director,  in  suit  against  colleagues  for  breach 

of  trust §  52  p.  96 

next  of  kin,  in  suits  against  administrator  and  sureties  §  52  p.  96 

suits  by  legatees  to  recover  share  of  decedent's  estates  §  52  p.  96 

subsequent  lienor  in  foreclosure  suit §  52  p.  96 

partner  beyond  jurisdiction,  in  suit  by  strangers    .     .  §  52  p.  96 

in  suits  by  other  partner       §52  p.  96 

contractors  owning  joint  interest §  52  p.  97 

suit  by  heir §  52  p.  97 

specific  performance  for  sale  of  lands §  52  p.  97 

assignor  of  claim,  in  suit  by  assignee §  52  p.  97 

stockholders'  suits §  52  p.  97 


7S2  INDEX. 

PARTIES  —  continued. 

suits  by  indorsers §  52  p.  97 

by  creditors  to  reach  lands  of  debtor §  52  p.  97 

suit  to  enjoin  execution  of  judgment §  52  p.  97 

maintenance  of  public  nuisance    ...  §  52  p.  98 

by  parties  against  State  to  restrain  illegal  tax     .  §  52  p   98 

parties  indispensable  to  a  decree §  53     pp.  98-102 

all  who  will  be  directly  affected  by  the  decree  sought  §  53  p.  98 
or   whose  obedience  is  necessary  to  enforcement  of 

decree §  53  p.  99 

when  a  person  is  affected §  53  p.  99 

if  decree  would  cast  cloud  upon  another's  title  ...  §  53  p.  9!) 

when  State  is  a  necessary  party §  53  p.  99 

trustee  of  an  active  trust §  53  p.  99 

party  to  contract  in  suits  affecting §  53  p.  99 

in  action  between  partners  for  accounting     ....  §  53  p.  99 

00 

CO 


tenants  in  common  in  partition  suit §  53  p 

person  claiming  title  or  interest  in  property       ...  §  53  p. 
mortgagor,  in  suit  by  mortgagee  against  third  party 

to  remove  cloud  upon  title §  53  p. 

in  suits  for  specific  performance  of  contract  affecting 

lands §  53  p. 

suits  by  stockholders  to  set  aside  foreclosure  of  rail- 
road mortgage §  53  p. 

corporation,  in  suits  against  third  person §  53  p. 

assignee  of  debtor,  in  suits  against  surety      ....  §  53  p. 

bills  by  legatees §  53  p. 

prior  incumbrancers,  in  suits  to  compel  execution  of 

mortgage §  53  p. 

staying  proceedings  in  ejectment §  53  p. 

when  numerous  interests  have  been  created  for  the  pur- 
pose  of   preventing  the    plaintiff    from   obtaining 

equitable  relief §  54  p. 

Lord  Hardwicke's  view  of  this  subject     .....  §  51  p. 

when  a  person  consents  to  relief  sought §  55  p. 

or  disclaims  all  interest  in  subject-matter     ....  §  55  p. 
agreements  between  persons  to  represent  each  other  as 

plaintiffs,  not  sanctioned §  55  p. 

when  the  plaintiff  waives  his  right  against  a  person      .     .  §  5(3  p. 

when  interest  of  absent  party  is  evidently  very  small    .     .  §  57  p. 

when  right  of  administration  is  in  dispute §  ."8  p. 

relaxation  of  rule  in  special  cases §59  p- 

largely  in  discretion  of  court §59  pp.  103- 

summarized  statement  of  the  rules  relating  to  parties        §60  pp.  11)4- 

objection  for  want  of  parties,  how  taken     ....        §01  pp.  105- 

joinder  of  improper  parties    ....        §  G2     pp.  106 

who  may  demur §  62  p. 

demurrer  cannot  be  raised  for  first  time 

on  appeal §  62  p. 

want  of  proper,  a  ground  of  demurrer  .......§  108  p. 

plea  of  want  of §  130  p. 


INDEX.  783 

PARTIES  —  continued. 

dismissing  bill  with  costs,  where  a  disclaimer  is  made 
and  it  appears  that  defendant  was  made  a  party  with- 
out reason §  155     p.  228 

to  bills  of  revivor §  179     p.  261 

to  supplemental  bills §  188     pp.  272-273 

when  to  sign  notice  of  motion §  197    p.  283 

to  motions  and  petitions §  197     p.  284 

who  may  make  petition §  199     p.  287 

intervening §  201     pp.  290-292 

signature  of ,  to  petition  for  intervention §202     p.  292 

not  usually  appointed  receiver §  255     p.  380 

nor  the  son  or  brother  of §  255     p.  380 

objections  as  to,  whether  can  be  raised  at  hearing   ...  §  299     p.  115 
who  are  entitled  to  attend  a  reference  before  a  master  §  310     pp.  456-457 

to  whom  costs  will  be  awarded §  327     pp.  477-4S1 

costs  between  party  and  party,  what  they  consist  of      .      .  §  329     p.  481 

attorney's  costs  belong  to,  and  not  to  attorney     ....  §  330     p.  483 

joinder  of,  how  far  State  practice  concerning,  is  followed  §  3G0     p.  530 
order  for  examination  of  party  before  trial  made  prior  to 

removal  to  Federal  court,  effect  of  removal  upon  ...  §  392     p.  589 

who  must  join  in  writ  of  error  or  appeal §  397     p.  598 

death  of,  pending  appeal  or  writ  of  error §  397     p.  599 

death  of,  before  time  allowed  for  taking  appeal  or  bring- 
ing writ  of  error  has  expiied §397     p.  599 

death  of,  pending  appeal  or  writ  of  error §  397     p.  599 

See  also  Abatement  and  Revivor;  Plaintiffs  and  Defendants; 
Removal  of  Causes. 

PARTITION7, 

tenants  in  common,  necessary  parties  to  suit  for.     ...  §  53     p.  100 

PARTNERS, 

accounting  between,  necessary  parties  to §  53     p.  99 

necessary  parties  to  suits  brought  by  one  of,  and  on  behalf 

of  others  similarly  situated §  47     p.  90 

whether  a  necessary  party  to  suit  against  firm      ....  §  52     p.  9(3 

whether  necessary  when  sued  to  account  by  other  partners  §52     p   96 

PARTNERSHIP, 

necessary  parties  in  suits  affecting  property  of     ...     .  §  45     p.  86 

alternative  relief  in  actions  affecting §70     p.  118 

when  receiver  will  be  appointed  in  suits  affecting     .     .     .  §210     p.  313 

PARTY   INTERESTED, 

not  excluded  from  testifying ,     .     .     .  §  274     p.  409 

PASSING   A   CAUSE, 

practice  upon,  in  Supreme  Court §  108     p.  620 

PATENTS, 

effect  of  State  statutes  of  limitation  upon §  8     p.  10 

for  invention,  bill  to  cancel §  11      p.  12 

for  land,  bill  to  cancel §11      p.  12 

reached  by  creditor's  bii] §  11     p.  11 

for  lands,  not  set  aside  at  suit  of  private  citizen  ...      §  12     pp.  17-18 


784  INDEX. 

PATENTS  —  continued. 

necessary  parties  to  suit  by  equitable  assignees  of    .     .     .  §  44     p.  84 

multifariousness  in  bills  to  enjoin  violation  of      ....  §  74     p.  125 
allegations  in  bill  to  impeach  patent  or  grant  by  United 

States,  not  brought  by  attorney-general §  76     p.  128 

allegations  in  bills  to  restrain  infringement  of  §  77     pp.  129-131 

bill   filed  by  United  States  to  vacate  patent  for   public 

lands,  what  to  contain §  84     p.  130 

injunctions  to  prevent  infringement  of    §210    p.  302;  §210    pp.  310-314 

introducing  in  evidence  copies  of  foreign §  268     p.  400 

costs  in  suits  founded  on §  327     p.  480 

action  for  infringement  of,  survives  to  representatives  of 

the  patentee §  373     p.  554 

writs  of  error  to  review  decrees  concerning §  394    p.  593 

PATENT   CASES, 

when  State  statutes  of  limitations  are  followed   ....  §  8     p.  10 

accounting  in §  11     pp.  14-15 

whether  jurisdiction  depends  on  value  of  subject-matter    .         §  15     p.  22 

jurisdiction  in §  17     p.  25 

in  Southern  District  of  New  York,  special  limitation  upon 

jurisdiction §  23     p.  32 

defenses  peculiar  to §  145     pp.  212-216 

pleas  in §  124     pp.  1S8,  189;  §  128     p.  193;  §  133     p.  200 

decrees  in '     •     §  325     p.  475 

PAUPER, 

petitions  for  leave  to  sue  as  a  poor  person  ....      §  200     pp.  288-290 
See  also  Interlocutory  Applications. 

PAUPER'S  FEES. 

allowed  to  counsel  assigned  to  person  suing  in  forma 
pauperis §  200     p.  289 

PEACE. 

See  Bill  of  Peace. 

PECK,  JUDGE. 

impeachment  trial  of,  for  inflicting  punishment  for  a-criti- 

cisrn  upon  one  of  his  decisions <,...§  341     p.  502 

PEER, 

appointment  of,  as  receiver §  255     p.  380 

PENALTY, 

as  a  subject  of  relief  in  equity §  2     p.  3 

no  person  compelled  to  discover  that  which  will  expose 

him  to  a §  84     p.  110 

defendant  may  demur  to  bill  if  his  answer  subject  him 

to  a §  109     p.  177 

for  disobeying  writ  of  injunction §  234     p.  335 

survivability  of  action  to  recover §  373     pp.  553-554 

of  bond,  on  removal  for  grounds  other  than  prejudice  or 
local  influence,  or  in  controversies  between  citizens  of 
the  same  State  claiming  land  under  grants  of  different 
States ' §  385    p.  573 


INDEX.  785 

PENDENCY   OF   ANOTHER   SUIT, 

objection  of,  can  be  taken  by  demurrer §  108     p.  176 

subject  of,  plea  in  defense §  129     pp.  193-196 

PENNSYLVANIA, 

divided  into  two  districts §  26     p.  51 

counties,  times,  and  places  of 
holding  court  therein  enume- 
rated   §  26     pp.  51-52 

districts  of,  included  within  the  Third  Circuit     ....     §  204     p.  295 

PENSIONS, 

no  suits  against  United  States  to  collect §  15    p.  21 

PERFORMANCE, 

specific,  as  a  ground  of  equitable  jurisdiction §  2     p.  4 

See  also  Specific  Performance. 

PERJURY, 

when  affiant  can  be  convicted  of  perjury  in  an  affidavit     .     §  271     p.  407 

PERPETUAL   INJUNCTIONS, 

distinguished  from  other  forms §  205     p.  297 

when  granted,  what  must  be  shown §  238     pp.  340-311 

PERPETUATING   TESTIMONY, 

as  a  subject  of  jurisdiction  in  equity §  2     p.  4 

bills  for §64    p.  110;  §  279     pp.  413-415 

PERSON, 

causes  of  demurrers  to  the §  108     p.  174 

pleas  to  the §  127     pp.  191-192 

PERSONAL   PROPERTY, 

injunctions  to  compel  delivery  of §221     p.  319 

PERSONAL   REPRESENTATIVES, 

necessary  parties  to  suit  against  heir  upon  ancestor's  cove- 
nants             §  42     p.  82 

bills  of  revivor  affecting §177     p.  260 

bills  of  revivor  by §  181     p.  263 

right  of,  to  appeal  or  bring  writ  of  error §  397     p.  599 

publication  of  order  requiring,  to  become  party  to  appeal 

or  writ  of  error §  397     p.  609 

See  Administrators;  Executors. 
PETITION, 

for  removal  on  grounds  other  than  prejudice  or  local  influ- 
ence, or  in  controversies  between  citizens  of  the  same 
State  claiming  land  under  grants  of  different  States      .     §  385     p.  572 
on  removal  of  cause  to  Federal  court,  denying  allegations 

of §  393     p.  590 

for  writ  of  error §  899     p.  603 

in  cases  of  removal  of  cause  or  criminal  proceeding      See  Removal  of 
Cause. 

See  also  Interlocutory  Applications. 

PHYSICIAN, 

testimony  of,  as  to  information  acquired  professionally      .     §  271     p.  410 

50 


786  INDEX. 

PLAINTIFF, 

pleadings  of.     See  Bills. 

PLAINTIFFS, 

who  are  capable  of  being §  28    p.  64 

rules  as  to,  alien  enemies §§  28,  30     p.  G4 

infants §  28     p.  64;  §  32     pp.  65-67 

idiots §  28     p.  64;  §  33     pp.  66-67 

lunatics §§  28,  31     pp.  64-65 

married  women §§  28,  31     pp.  64-65 

persons  declared  by  State  laws  to  be  civilly  dead  §  28  p.  64 
capacity  of  foreign  executors,  administrators,  and  receivers  §  34  p.  68 
all  persons  should  be  made,  who  are  interested  in  relief 

prayed  for §  42     p.  81 

receiver  usually  appointed  upon  application  of     ....     §  253     p.  378 

dismissal  of  bills  by §  291     pp.  434-435 

misjoinder  of.     See  Bills. 

See  also  Intervention  ;  Parties. 

PLEAS, 

definition  and  classification  of §  124     pp.  188-190 

Lord  Redesdale's  .     .     .     .     §  124     p.  188 
how  many  grounds  of  defence  can  be  presented  by  ...     §  124     p.  188 

what  plea  should  state §  124    p.  189 

pleas  in  abatement  in  general §  125    pp.  190-191 

to  the  jurisdiction §  126     p.  191 

person §128    pp.  192-193 

bill .     §128     pp.  192-193 

as  a  mode  of  objecting  to  multifariousness  in  bills    .     §    75     p.  126 

of  pendency  of  another  suit §  129     pp.  193-196 

want  of  parties    .     .     .     §  61     pp.  105-106;  §  130     pp.  196-197 

statute §  131     pp.  196-198 

matter  of  record §  132     pp.  198-199 

in  pais §  133     pp.  199-200 

to  the  discovery §  134     p.  200 

when  plea  must  be  filed     .     .     .  §  111     pp.  178-179;  §  135     pp.  200-201 

frame  and  requisites  of  plea §136     pp.  201-202 

answers  with  pleas §  137     pp.  202-204 

proceedings  of  plaintiff  on  the  filing  of  a  plea     .     .     §  138     pp.  204-205 

motion  to°take  off  the  file §  139     p.  205 

effect  of  failure  to  set  down  for  argument §  120     p  184 

argument  of  plea §  140     pp.  20G-208 

motion  for  reference  of  plea . §  141     pp.  208-209 

hearing  upon  plea §142     pp.  209-210 

general  remarks  upon  pleas §  143     p-  -10 

when  bill  may  be  amended  before §  164     p.  240 

amendments  of §  166     p.  242 

statute  of  limitations  may  be  set  up  to  bill  of  revivor  by  .     §  181     p.  265 

to  supplemental  bill .     §  1S9     p.  275 

injunction  will  not  usually  be  granted  while  plea  to  bill  is 

pending §  228     p.  327 

when  a  constructive  admission §  266     p.  396 

which  may  be  disregarded  at  hearing §  299     p.  445 


INDEX.  787 

PLEA   IN    ABATEMENT, 

when  necessary,  on  denying  allegations  in  petition  filed 

for  removal  of  cause  to  Federal  court §  393     p.  590 

upon  writ  of  error  there  is  no  reversal  for  error  in  ruling 
on  any  plea  in  abatement,  such  as  the  plea  of  the  pen- 
dency of  another  suit,  other  than  a  plea  to  jurisdiction 

of  court §  394     p.  591 

See  also  Abatement;  Plea. 

PLEADINGS, 

recital  of,  in  decrees §  325    p.  474 

how  far  State  practice  respecting  verification,  time,  service 

and  amendment  of,  is  followed §  360     p.  530 

granting  order  for  examination  of  opposite  party  to  frame     §  372     p.  552 
what  rules  relative  to  sufficiency  and  scope  govern  in  Fed- 
eral court §  374     p.  556 

amendment  of,  after  removal  of  cause  to  Federal  court    .     §  391     p.  587 
See  also  Bill;  Repleader. 

POINTS. 

See  Briefs. 

POLITICAL   PJGI1T, 

injunction  will  not  be  issued  to  prevent  a  mere  political 

right §  223    p.  321 

POLLOCK,   CHIEF  BARON, 

quotation  from,  on  the  necessity  of  private  party  alleging 
special  damage,  on  applying  for  injunction  founded  on 
a  violation  of  statute §  207     p.  300 

POLYGAMY, 

writ  of  error  to  review  conviction  of,  in  Supreme  Court  of 

Utah §  394    p.  593 

POOR  PERSON, 

petitions  for  leave  to  sue  as §  200     pp.  2S8-290 

POSSE    COMITATUS. 

See  Execution  of  Decrees  and  Orders. 

POSSESSION, 

injunctions  to  quiet,  before  hearing,  practice  respecting, 

in  former  times §  209     p.  302 

POSTAL   LAWS, 

jurisdiction  of  suits  under §    15     p.    22 

POSTEA, 

proceedings  after  the  trial  of  an  issue  and  completion  of 

the  record  by  the  addition  of  the  postea §  306     p.  453 

POSTMASTERS, 

introducing  in  evidence  copies  of  the  quarterly  return    of     §  268     p.  390 

POSTPONEMENT, 

of  argument  of  important  constitutional  questions  ...     §  408     p.  620 

POWER?, 

of  receivers  in  general §  215     pp.  359-361 

of  railroads §  216     pp.  361-365 


788  index. 

PRACTICE   AT   COMMON   LAW, 

in  general  §  360     pp.  529-531 

how  far  practice  of  State  courts  is  followed     .     .     §360     p.  529 

writs  and  process  in  general §  361     pp.  531-532 

of  prohibition §  362     pp.  532-533 

mandamus        §  363     pp.  533-537 

practice  on  application  for    .     .     §  364     pp.  537-539 

certiorari §  365     p.  540 

habeas  corpus,  in  general §  366     pp.  541-545 

practice  on  application  for      .     .     §  367     pp.  545-548 

appeals  in §  368     pp.  548-549 

attachment  of  property §  369     p.  549 

arrests §  370     p.  550 

consolidation  at  law  and  in  equity §  371     pp.  550-551 

evidence,  testimony,  and  depositions §  372     pp.  551-553 

abatement  and  revivor §  373     pp.  553-554 

trials  of  issues  of  fact  in  actions  at  common  law      .     §  374     pp.  554-556 
rules  of  decision  "  "  "  .     §  375     pp.  556-559 

new  trials §  376     p.  559 

bills  of  exceptions §  377     pp.  559-560 

judgments §  378    pp.  560-561 

correction  of,  by  courts  that  rendered  them  §  379  pp.  561-582 
executions  and  proceedings  supplementary  thereto  .  §  380  pp.  562-565 
condemnation  proceedings §  381     p.  565 

PRACTICE  IX  FEDERAL  COURTS, 

by  what  rules  and  statutes  regulated §  27  pp.  56-57 

PRAECIPE, 

to  clerk  to  enter  an  appearance §100    p.  161 

PRAYER, 

of  judgment  in  demurrer §  117     pp.  182-183 

PRAYER   FOR   GENERAL  RELIEF, 

embodied  in  notice  of  motion §  197     p.  281 

PRAYER   OF   PROCESS, 

in  bills §  85     pp.  140-141 

PRAYER  FOR  RELIEF, 

what  to  contain §83     pp.  136-137 

that  plaintiff  is  not  entitled  to,  a  ground  of  demurrer     .     .     §  108  p.  175 
answer  cannot  ordinarily  pray  relief  against  complainant, 

and  never  against  co-defendant §  144     p.  211 

PRECEDENTS, 

force  of,  in  equity §  1     P-  * 

PREFERENCES, 

of  certain  claims  in  railroad  foreclosure  suits §  243     p.  347 

among  appeals  on  calendar  of  Supreme  Court       ....     §  408     p.  619 

PREJUDICE, 

practice  on  removal  of  cause  for  grounds  other  than  pre- 
judice      .     §3S5     p.  572 

practice  on  removal  of  cause  for  prejudice  or  local  influ- 
ence     §  386    pp.  575-580 


INDEX.  789 

PRELIMINARY  INJUNCTIONS.     See  Injunctions. 
PRESIDENT, 

of  United  States,  when  suable §  12     p.  15;  §  35     p  68 

writs  of  error  issued  in  name  of §  399     p.  0U2 

whether  amenable  to  process  of  Federal  courts    ....       §  98     p.  159 
PRESUMPTION, 

as  to  citizenship  of  members  of  corporation     ....      §  19     pp.  2G-27 
PRINTED   ARGUMENTS, 

in  Supreme  Court §  408    pp.  621-022 

PRINTING, 

the  record  on  appeals  or  writs  of  error §  -107    pp.  617-G19 

PRIOR   INCUMBRANCERS, 

when  necessary  to  make  parties  to  bill  of  foreclosure    .     .         §  44     p.  83 
whether  necessary  parties  to  suit  to  compel  execution  of 

mortgage §  53     p.  101 

PRIOR  PROCEEDINGS, 

in  cause  before  removal  to  Federal  court,  effect  of  removal 

on  same §  392     p.  588 

PRISONER, 

time  of,  to  bring  appeal,  or  writ  of  error §  398     p.  G02 

time   to   review   judgment  of   District  Court   by   Circuit 

Court  in  the  case  of  a §  404     p.  611 

See  Habeas  Cokpus. 
PRIVATE   LETTERS, 

injunction  to  restrain  publication  of §  206     p.  298 

injunctions  to  prevent  the  unauthorized  opening  of  ...     §  210    p.  302 
PRIVATE   PARTY, 

when   must  allege  special  damage,  to  obtain   injunction 

founded  on  violation  of  statute §  207     p.  300 

PRIVITY, 

necessary  to  entitle  one  to  revive  a  suit §  177     p.  259 

PRIZE   CAUSES, 

appeals  in §  394     p.  590 

time  within  which  appeals  in,  must  be  taken §  398     p.  601 

See  also  Crew. 
PRIZE   MONEY, 

necessary  parties  to  suit  to  recover,  by  one  of  crew  on  be- 
half of  himself  and  others  similarly  situated     ....         §  47     p.  90 
PROBATE, 

State  statute  authorizing  setting  aside  of,  enforceable  in 

Federal  court §  7     p.  9 

not  set  aside  by  equity §  12     p.  IS 

PROCEDURE, 

State  statutes  regulating  procedure  in  Federal  courts     §  374     pp.  555-550 
PROCESS, 

prayer  of,  in  bills §  85     pp.  140-141 

common-law  procedure  respecting §  300     p.  530 

how  far  State  practice  respecting  service  of,  followed    .     .     §  300     p.  530 
See  also  Suhi-cexas  to  Atpear  and  Answek. 
See  also  Practice  at  Common  Law. 


790  INDEX. 

PRO  CONFESSO, 

decrees  taking  bills     ....    §§103-104     pp.  164-169;  §  149     p.  221 

appeal  from  decree  entered  pro  confesso §  397     p.  601 

See  also  Taking  Bills  Pro  Confesso. 

PRODUCTION, 

of  books  and  papers,  affidavit  for §  267     p.  398 

PROFERT, 

of  patent,  in  bill  to  enjoin  infringement §  77     p.  129 

PROFESSIONAL   CONFIDENCE, 

defendant  may  demur  to  bill  if  his  answer  would  involve 

a  breach  of §  109    p.  177 

PROFITS   OF   TRADE, 

no  injunction  against  corporation  for  merely  diminishing 

the  profits  of  a  private  individua §  207     p.  300 

See  also  Monopoly. 
PRO   HAC   VICE, 

appointing  master  pro  hac  vice  in  a  particular  case      ...  §  308     p.  455 

PROHIBITION, 

writ  of,  distinguished  from  injunction  to  stay  proceedings 

in  other  courts §  211     p.  303 

how  far  State  practice  respecting  writs  of  prohibition  fol- 
lowed     §  362    pp.  532-533 

included  in  the  term  "  suit "  for  the  purpose  of  a  writ  of 

error  from  the  Supreme  Court  to  State  court       ....  §  405    p.  614 

PROHIBITORY  INJUNCTIONS. 

See  Injunctions. 
PROLIXITY, 

in  bills §  159    p.  233 

PROOF. 

See  Evidence;  Practice  at  Common  Law. 

PROPERTY, 

as  conferring  jurisdiction  in  equity §  1     p.  2 

in  custody  of  State  court,  jurisdiction  of  Federal  court  over  §  9  pp.  11-12 

what  court  deemed  to  have  custody  of §  9    p.  11 

in  custody  of  Federal  court,  what  rules  apply        §  10     p.  12 

value  of  matter  in  dispute  to  confer  jurisdiction  ...  §  16  pp.  23-25 
principle  that  no  question  affecting  a  person's,  to  be  decided 

without  his  presence,  applicable  to  equity §  42    p.  81 

claimed  by  persons  under  inconsistent  titles §  44    p.  84 

held  in  trust,  who  necessary  parties  in  suits  affecting  .  .  §  45  p.  86 
necessary  parties  in  suits  affecting  partnership  .  .  .  .  §  45  p.  86 
person  claiming  title  or  interest  in,  when  necessary  party 

to  suit  affecting §  53     p.  100 

petition  to  maintain  infant  out  of  his §  199     p.  288 

injunction  to  compel  delivery  of §  210     p.  302 

injunction  to  restrain  the  alienation  of §  212     pp.  305-306 

injunction  to  compel  delivery  of  personal  property     ...    §  221     p.  319 

over  which  receivers  may  be  appointed §  244     pp.  356-359 

attachment  of §  369     p.  519 


INDEX. 


791 


PROPERTY  —  continued. 

how  far  local  rules  of  property  established  by  State  court 

decisions  are  binding  upon  the  Federal  tribunals   .     .     .    §  375     p.  557 

death,  removal,  or  expiration  of  term  of  marshal  after  tak- 
ing property  in  execution §  380     p-  563 

security  required  on  applying  for  supersedeas §  402     p.  606 

See  also  Receiver. 
PROSECUTION, 

dismissal  of  bills  for  want  of §  292     pp.  43o-436 

criminal.     See  Criminal  Prosecution. 
PROTESTATION, 

to  demurrer,  no  longer  necessary §  113     p.  179 

PROVISIONAL   INJUNCTIONS, 

distinguished  from  other  forms  . §  205     p.  297 

See  also  Injunctions. 
PROVISIONAL   REMEDIES, 

common-law  procedure  respecting §  360     p.  530 

PUBLICATION,  _ 

service  of  process  by §  97    pp.  157-159 

of  order  requiring  representative  of  deceased  party  to  be- 
come party  to  appeal  or  writ  of  error §  397     p.  600 

PUBLIC   AUCTION, 

sales  at,  by  masters §  316     p.  403 

PUBLIC   LAWS, 

how  introduced  in  evidence.     See  Evidence. 
PUBLIC    MINISTERS, 

where  sued       §  14    pp.  20-21 

PUBLIC   OFFICE, 

defendant  may  demur  to  bill  if  his  answer  would  involve 

a  breach  of  confidence  obtained  in  a §  109     p.  177 

PUBLIC   OFFICER, 

no  discovery  can  be  required  of §  148     p.  219 

PUBLIC   PROPERTY, 

when  receiver  cannot  be  appointed  over §  244     p.  356 

PUIS   DARREIN   CONTINUANCE, 

plea  of,  cross-bills  a  substitute  for §  171     p-  250 

PURCHASERS, 

at  master's  sales §  316     p.  464 

PURE   PLEA, 

defined §  124     p.  1S9 

PURPRESTURES, 

defined,  distinction  between  nuisances  and     ...     §  214    pp.  307-308 


Q- 

QUALIFICATIONS, 

of  receiver §  255     p.  379 

master §  308     p.  455 


792  INDEX. 

QUESTION  OF   GENERAL  IMPORTANCE, 

certification  of,  by  judge  of  District  Court  for  purpose  of 

appeal       §  394     p.  592 

QUIBUSDAM   CERTIS   DE   CAUSIS, 

writ  of §  91     p.  148 

QUIETING   TITLE, 

alternative  relief  in  bill  for §70     p.  118 

QUI   TAM, 

survivability  of  actions  to  recover  penalty  under  United 

States  statute §  373     pp.  553-554 

QUO   WARRANTO, 

writ  of §  15     p.  22 


R. 

RAILROADS, 

compliance  with  Inter-state  Commerce  Act  compellable  in 

certain  cases  by  injunction §*222     p.  321 

by  mandamus §  363     p.  536 

receivers  to  manage §  241     p.  357 

power  of  receivers  of §  246     pp.  361-305 

RAILROAD   BONDHOLDERS, 

parties  to  suits  by  on   behalf  of  themselves  and  others 

similarly  situated §  47     p.  89 

RAILROAD   FORECLOSURE, 

jurisdiction §  319     p.  468 

parties  to   .     .     §  44     pp.  83-S4 ;  §  45     p.  87;  §  47     p.  90 ;  §  51     p.  95; 

§  52     p.  96  ;  §  53     pp.  100-101 
decrees  in     ...        §316    p.  404;  §  321     p.  470;  §  321;  pp.  470-473; 

§  325     p.  476 

appointing  receiver  in §  240     p.  345 

terms  upon  appointing  receivers  in §  243     p.  347 

See  Foreclosure  ;  Preferences:  Receivers. 
RAILROAD   LEASE, 

specifically  performed ..§11     p.  14 

parties  to  accounting  under §  45     p.  88 

RAILROAD    MORTGAGE, 

trustees  under,  when  necessary  parties  to  suits  affecting 

property  covered  by §  45     p.  87 

when  trustees  of,  need  not  be  made  parties  to  bondholder's 

foreclosure  suit §  51     p.  95 

necessary  parties  in  suits  by  stockholders  to  set  aside  fore- 
closure of §  53     p.  100 

sales  under §  316     pp.  463-465 

See  Mortgage. 
READING, 

affidavit  to  person  unable  to  read §  270     p.  406 

RE-AFFIRMANCE, 

power  of  Supreme  Court  to  order §  409     p.  623 


INDEX.  793 

REAL   ACTIONS, 

cannot  be  revived §  373     p.  554 

security  required  ou  applying  for  supersedeas  in       ...     §  402     p.  GOG 

REAL   PROPERTY, 

required  for  United  States  government,   practice  in  con- 
demnation proceedings  to  acquire §  381     p.  565 

See  also  Execution;  Land. 
REARGUMENT, 

in  Supreme  Court §  403     p.  622 

RECEIPTS, 

to  be  taken  by  receivers §  250    p.  373 

RECEIVER, 

removal  of  case  after  appointment §  9     p.  11 

not  appointed  to  levy  or  collect  tax        §  12     p.  16 

cannot  enforce  collateral  obligation  given  creditors  .     .     .         §  12     p.  18 

when  appointed  at  prayer  of  insolvent        §  12     p.  18 

suits  by §  10     p.  26 

capacity  of  foreign,  to  sue §  34     p.  6S 

citizenship  of,  as  affecting  jurisdiction §  19     p.  20 

when  cannot  be  sued §  35     p.  08 

when  expenses  for  infant  will  not  be  advanced  out  of 

funds  in  hands  of §  39     p.  79 

who  necessary  parties  on  a  bill  to  foreclose  a  mortgage 

praying  for  a §  44     p.  83 

bill  by,  of  national  bank  for  loss  caused  by  negligence  of 

directors §  09     p.  116 

motion  for  appointment  of,  when  can  be  made     ....     §  197     p.  284 

petition  for  leatve  to  sue §  199     p.  288 

defined §  239     p.  342 

when  will  be  appointed §240     pp.  342-3  Id 

rules  regulating  the  appointment       §  241     p.  340 

ancillary  receivers §  242     pp.  340-347 

terms    upon   the   appointment   of    receivers   and   prefer- 
ences in  foreclosure  suits §  243     pp.  347-3.15 

property  over  which  receivers  may  be  appointed        .     §214     pp.  356-359 
powers  of  receivers  in  general    .      ..*....     §245     pp.  359-361 

365 
303 


of  railroads        §  210     pp.  361 

receivers' certificates §217     pp.  305- 

advice  to  receivers §  248     pp.  368-369 

172 
171 
171 
376 
178 
579 
379 


litigation  by  receivers        §  249     pp.  3G9 

interference  with  duties  of    .  .     .     §  249     p. 

duties  of §  250  '  pp.  372 

liability  of §251     pp.  374- 

manner  of  applying  for  the  appointment  of      ...  §  252     pp,  376 

who  may  apply  "  "  "  ...  §  253     pp,  378 

manner  of  appointment §  254     p. 

who  should  be  appointed §  255     pp.  379-381 

security  by §  256     pp.  381-383 

accounts  of §11     p.  14;  §  257     pp.  383-384 

compensation  of §258     pp.  381  385 


794  INDEX. 

RECEIVER  —  continued. 

removal  of       . §  259     pp.  385-387 

discharge  of         §  260     pp.  387-388 

may  be  put  in  possession  by  means  of  writ  of  assistance     §  318     p.  510 
appointed  before  removal  of  cause  to  Federal  court,  effect 

of  removal  upon §  392     pp.  588-589 

right  of  to  appeal §  397     p.  598 

right  to  appeal  from  decree  for  the  delivery  of  property  to      §  318     p.  467 

RECEIVERS'   CERTIFICATES. 

See  Receivers. 

RECEIVER   OF   NATIONAL   BANK, 

jurisdiction  of  action  at  common  law  by §  15     p.  22 

RECITALS, 

in  decrees §  325     p.  474 

RECOGNIZANCE, 

by  receiver §  256     p.  382 

RECONVENTIO, 

of  the  later  civil  law,  the  origin  of  cross-bill §  169     p.  246 

RECORD, 

pleas  of  matter  of §  132     pp.  198-199 

introduction  of,  in  evidence §  268     pp.  398-406 

filing  of,  after  removal  to  Federal  court §  390     pp.  583-585 

affidavits  to  show  value  of  matter  in  dispute  where  the 

same  does  not  appear  in  the  record §  395     p.  596 

failure  of  plaintiff  in  error  to  docket  case  and  file  record 

in  time §  403     p.  609 

authentication  on  return  of  writ  of  error §  403     p.  607 

defendant  in  error  may,  if  he  chooses,  docket  the  cause 

and  file  the  record §  403     p.  610 

printing,  on  appeals  and  writs  of  errors §  407     pp.  G17-619 

RECORDING   ACTS, 

how  far  Federal  tribunals  follow  recording  acts  of  the 

States  in  which  they  are  held §  375     p.  558 

REDEMPTION, 

of  mortgaged  property §  6     p.  8 

State  statute  giving  mortgagor  right  of,   enforceable  in 

Federal  courts §  7     p.  9 

when  mortgagor  who  has  sold  equity  of,  is  a  necessary 

party  to  foreclosure §  44     p.  84 

bill  for,  must  contain  offer  to  pay  what  is  due  thereon       .       §  84     p.  138 

REDESDALE,    LORD, 

classification  by,  of  demurrers  to  relief §  108     pp.  174-177 

definition  and  classification  of  pleas  by §  124  p.  188 

definition  by,  of  supplemental  bill §  187  p.  270 

practice  according  to,  respecting  supplemental  bill  ...     §  187  p.  271 

on  bills  of  review §356     p.  523;  §357  p.  526 

on  impeaching  decrees  improperly  obtained  in  cases  of 

trusts  and  trustees §  358  p.  527 

on  bills  for  suspending  or  avoiding  operation  of  decrees    .     §  359  p.  527 


INDEX.  795 

REFERENCE, 

of  bills  for  scandal  and  impertinence §68     p.  11. j 

motion  for,  of  a  plea §  141     pp.  208-209 

ordered  upon  hearing  to  master  to  take  accounts  and  as- 
sess damages •     •     §  300     p.  446 

costs  where  master  reports  in  favor  of  plaintiff  for  nominal 

damages §  327     p.  479 

State  statute  providing  for  a  compulsory  reference,  effect 

of,  in  Federal  court §  374     p.  556 

See  also  Master. 
REFORMATION, 

of  instrument §  11     p.  13 

of  insurance  policy,  when  bill  for,  is  ancillary      ....         §  21     p.  28 
REHEARING, 

in  Supreme  Court > §  408     p.  622 

See  also  Correction  of  Decree  otherwise  than  by  Appeal. 

REISSUED   PATENT, 

allegations  as  to,  iu  bill  to  enjoin  infringement  ....  §  77  p.  129 

demurrer  to  bill  for  injunction  to  restrain  infringement  of  §  108  p.  176 

plea  to  bill  for  injunction  to  restrain  infringement  of  .     .  §  133  p.  200 

REJECTED   CLAIMS, 

when  suits  lie  as  against  United  States §  15    p.  22 

RELATOR, 

under  English  practice §  63     p.  108 

effect  of  death  of ,  upon  proceedings §  63     p.  108 

motion  on  behalf  of,  under  an  information §  197     p.  284 

on  application  for  mandamus §  364     p.  537 

RELIEF, 

decision  to  provide  for  all  the  rights  which  different  per- 
sons have  in  the  matters  decided §  42     p.  81 

distinction  between  courts  of  law  and  equity  as  to  afford- 
ing complete §  42     p.  81 

consent  to,  as  affecting  necessary  parties §  55     pp.  102-103 

demanded,  when  may  be  stated  in  the  alternative    .     .  §  70     pp.  117-118 

prayer  for §83     pp.  130-137 

classification  of  demurrers  to §  108     pp.  174-177 

that  plaintiff  not  entitled  to  relief  prayed  for,  ground  of 

demurrer §  108     p.  175 

answer  cannot  ordinarily  pray  against  complainant,  and 

never  against  co-defendant §  144     p.  211 

notice  of  motion  for  general §  197     p.  284 

RELIGIOUS   FEELINGS, 

injunction  will  not  be  issued  to  prevent  mere  outrage  of   .     §  223     p.  321 

REMAINDER-MEN, 

whether  necessary  parties  in  suits  affecting  estate    ...         §  15     p.  80 

REMAND, 

in  general §  393     pp.  598-590 

costs  imposed  upon S  393     p.  590 

by  Circuit  Court  in  case  of  reversal  of  conviction  had  in 
" District  Court §1"!     P- 612 


796  INDEX. 

REMANDING, 

whether  a  second  petition  can  be  filed  for  removal  after  a 

case  has  been  remanded §  391     p.  587 

causes    improperly   or    collusively    removed    to    Federal 

court §  393     pp.  589-590 

appeals  from  order  for  remand §  393     p.  590 

REMEDIAL   WRITS, 

as  distinguished  from  other  forms  of  injunctions      ...     §  205     p.  297 
See  Injunctions. 
REMEDY, 

dismissal  of  bill  for  plaintiff's  failure  to  elect  whether  he 

will  proceed  at  law  or  in  equity §  295     pp.  439-4-10 

how  far  State  statutes  affecting,  are  followed  in  Federal 

tribunals §  375     p.  557 

REMEDY   AT   LAW, 

what  is  deemed  an  adequate §  5     pp.  7-8 

a  statement  that  plaintiff  is  without,  no  longer  necessary 

in  bills §    65     p.  112 

objection  that  plaintiff  has  an  adequate,  must  be  specifi- 
cally raised  in  a  demurrer,  plea,  or  answer §  110     p.  178 

objection  that  plaintiff  has,  may  be  taken  by  demurrer, 

plea,  or  answer §  125    p.  191 

injunctions  to  prevent  irreparable  injury  for  which  the 

remedy  at  law  is  inadequate §  210     p.  302 

injunction  will  not  be  issued  when  party  has  a    ....     §  223     p.  324 
See  also  Injunctions. 

REMITTITUR, 

plaintiff  filing §  395    p.  595 

REMOVAL, 

of  State  or  municipal  officer  not  enjoined §  12     p.  17 

from  office  by  quo  warranto §  15     p.  22 

of  receivers §  259  pp.  3S5-387 

REMOVAL   TO    FEDERAL   COURT, 

of   case   in   which    State   court   has  taken  possession  of 

property §  9     p.  11 

after  appointment  of  receiver §  9     p.  11 

whether  filing  petition  for,  constitutes  an  appearance  .     .     §  100     p.  161 

plea  in  abatement  for  want  of  jurisdiction §  125    p.  190 

who  may  discharge  receiver  after §  260     p.  387 

dismissal  of  bill  for  collusive  jurisdiction §  293     p.  436 

costs  in  actions  on  removal §  327     p.  479 

of  habeas  corpus  proceeding §  366     p.  044 

order  of  State  court  directing  an  examination  of  witnesses, 

when  avoided  by §  372     p.  552 

removal  of  causes  from  one  Federal  court  to  another     §  382     pp.  566-567 

facts  authorizing,  and  procedure §  382     pp.  566-567 

causes  which  may  be  removed  from  a  State  court  to  a  Cir- 
cuit Court  of  the  United  States §  383     pp.  567-570 

separable  controversies §  384     pp.  570-572 


INDEX.  797 

REMOVAL   TO    FEDERAL    COURT  —  continued. 

practice  on  removal  in  general,  on  grounds  other  than 
prejudice  or  local  influence,  or  in  controversies  be- 
tween citizens  of  the  same  State  claiming  land  under 

grants  of  different  States §  385     pp.  572-575 

for  prejudice  or  local  influence §386     pp.  575-580 

on  removal  of  suits  containing  controversies  between 
citizens  of    the    same    State   claiming   land   under 

grants  of  different  States §  387     p.  5S0 

on  removal  of  suits  against  revenue  officers  and  offi- 
cers of  either  house  of  Congress §  388     pp.  580-582 

on  removal  of  cases  arising  under  civil  rights  laws     §  389     pp.  582-583 

filing  of  record  after  a  removal §  390     pp.  583-585 

practice  after  removal  of  cause §  391     pp.  585-588 

effect  of  removal §  392     pp.  5S8-589 

remand §  393     pp.  589-590 

RENEWING   MOTION, 

in  Federal  court  after  removal  of  cause §  391     p.  587 

REPLEADER, 

not  necessary  after  removal  of  cause  to  Federal  court  if 

suit  is  in  its  nature  an  action  at  common  law  ....     §  391     p.  585 

usually  otherwise  in  equitable  actions §  391     p.  585 

REPLEVIN, 

security  required  on  applying  for  supersedeas  in    ....     §  402     p.  606 
REPLEVIN   BOND, 

inability  to  give,  no  ground  for  equitable  relief    ....         §  12     p.  17 
REPLICATIONS, 

special,  not  allowed §  76     p.  127 

should  not  be  filed  to  a  disclaimer  alone     ....      §  155     pp.  228-229 

definition  and  history  of §156     pp.  230-231 

when  should  be  filed §  157     p.  231 

effect  of §  158     p.  232 

frame  of,  and  requisites §  159     pp.  232-233 

form §  159     p.  233 

signature  to §  159     p.  233 

amendments  of §  166     p.  242 

REPLY   CLAUSE, 

in  bills.     See  Bills. 
REPORT, 

of  master §  314     p.  461 

REPRESENTATIVES, 

when  necessary  to  suits  for  specific  performance       .     .     .         §  44     p.  81 
general  rules  as  to  making  parties  where  the  law  has  fur- 
nished   §  '15     pp.  85-88 

exemption  of,  from  service  of  process §  98     p.  159 

when  writ  of  ne  exeat  repuhlica  cannot  be  issued  agaii  si 

Federal .     §  262    p.  890 

See  also  Administrators;  Executors;  Personal  Representatives. 
RE-SALE, 

when  will  be  ordered §  316     p.  465 


798  INDEX. 

RESIDENCE, 

not  conclusive  of  citizenship    . §  19     p.  27 

as  a  limitation  upon  jurisdiction §  22     pp.  29-31 

limitations  upon  jurisdiction  of  Federal  courts  by    .     .     §  22     pp.  29-31; 

pp.  58-63 

in  what  State  corporation  deemed  to  have  a §  22     p.  30 

averments  as  to,  in  bills §  66     p.  113 

when  defects  of,  can  be  raised  by  demurrer §  105     p.  170 

failure  to  state  in  bill,  a  ground  of  demurrer §  108    p.  176 

of  petitioner  to  be  stated  in  petition  for  intervention    .     .     §  202     p.  292 
of  defendant,  as  affecting  right  to  remove  cause  from  State 

to  Federal  court §  383     p.  570 

RESULTING   TRUSTS, 

as  subjects  of  equity  jurisdiction §  2    p.  3 

RETURN, 

by  marshal  to  writ  of  attachment  for  contempt    ....     §  346     p.  508 

to  writ  of  habeas  corpus §  367     p.  546 

motion  to  dismiss  writ  of  error  because  no  assignment  of 

errors  is  attached  to  return §  403     p.  610 

RETURN  DAY, 

of  writ  of  error §  399  p.  603;  §  403  pp.  607-608 

writs  of  error  to  be  served  before   . §  399     p.  603 

REVENUE   APPEALS, 

may  be  advanced  on  calendar  of  Supreme  Court  by  motion 

of  attorney-general §  408    p.  620 

REVENUE   LAW, 

writs  of  error  in  civil  action  brought  by  the  United  States 

in  Circuit  or  District  Court  for  enforcement  of     .     .     .     §  394     p.  593 
REVENUE    OFFICER, 

recovery  against,  execution §  380     p.  564 

removal  of  civil  suits  and  criminal  prosecutions  against, 

to  Federal  court §  383     p.  568 

practice  on  removal  of  suits  against §  388     pp.  580-582 

writs  of  error  in  actions  against §  394     p.  593 

See  also  Writ  of  Error  and  Appeals. 

REVERSAL, 

power  of  Supreme  Court  to  order §  409    p.  623 

REVIEW, 

bills  of §  64    p.  110 

bills  of,  and  bills  in  nature  of §§  353-357     pp.  517-520 

See  also  Writs  of  Error  and  Appeals. 

REVIVING  SUIT, 

dismissal  of  bill  for  failure  to  perfect  or  revive  suit ...     §  294    p.  439 

REVIVOR, 

bills  of ,  not  original §  64    p.  110 

dismissal  of  bill  for  failure  to  perfect  or  revive  suit ...     §  294    p.  439 

common-law  procedure  respecting §  360     p.  530 

of  suits §  373     pp.  553-55-' 

See  also  Bills  of  Revivor. 


INDEX.  799 

RHODE  ISLAND, 

constitutes  one  judicial  district §  2G     p.    52 

times  and  places  of  hold- 
ing court  therein  enum- 
erated       §  26     p.    52 

the  district  of,  included  within  First  Circuit §  2()4     p.  295 

RIGHT, 

of  navigation §  12     p.    10 

purely  political,  not  protected  by  equity §  12     p.    16 

in  abstract  never  practically  exercised,  not  protected  by 

equity §  12     p.     16 

privilege   or   immunity   secured   by  Constitution   of  the 

United  States §  15     p.    21 

ROBIXS, 

remark  of,  as  to  general  relief §  83     p.  137 

ROMAN   LAW. 

See  Civil  Law. 
RULE   DAY, 

on  which  appearance  is  to  be  made §  102     p.  163 

motions  and  orders  which  are  to  be  made  on §  197     p.  2S2 

RULES   OF   DECISION, 

in  trials  at  common  law §  375     pp.  556-559 

of  State  court  made  prior  to  removal  to  Federal  court  will 

usually  be  followed  in  the  latter  after  removal       ...     §  391     p.  5S7 
RULES   OF   PRACTICE, 

promulgated  by  United  States  Supreme,  Circuit  and  Dis- 
trict Courts §  27     pp.  56-57 

See  Appendix,  pp.  664-704. 
RULINGS, 

upon  a  hearing §  298    p.  442 


S. 

SAILING   OF  SHIP, 

injunction  to  restrain §  210     p.  302 

SALARY, 

when  part  of  matter  in  dispute §  395     p.  596 

SALE, 

bill  to  set  aside,  what  to  contain §  84     p.  139 

injunctions  to  prevent  sale  and  transfers  of  chattels      .     .     §  212     p.  306 

by  masters §  316     pp.  463-465 

SALE   OF   LAND, 

injunctions  to  restrain §  210     p.  302 

SANDFORD,    CHANCELLOR, 

report  to,  by  Master  Hoffman,  on  the  history  of  the  prac- 
tice and  effect  of  taking  bills  pro  confesso §  104     p.  166 

SAWYER,   JUDGE, 

opinion  on  rule  90,  of  the  Supreme  Court,  of  equity  prac- 
tice          §  27     p.  57 


800  INDEX. 

SCANDAL, 

and  impertinence  in  bills §  68     pp.  114-116 

answers §  147  p.  216 

replication  not  to  contain  any §  159  p.  232 

party  in  contempt  moving  to  expunge  scandal  from  record  §  197  p.  284 

allowing  costs  against  pauper  for §  200  p.  290 

petition  for  intervention  to  be  free  from  ....  .  §  202  p.  292 
application  for  injunction  refused  because  bill  had  been 

referred  for §  228  p.  327 

SCILICET, 

in  affidavit ,     §  272    p.  407 

SCIRE   FACIAS, 

subpoena  in  the  nature  of  a,  the  ancient  practice  of  reviv- 
ing suits §  178    p.  260 

to  be  served  on  executor  or  administrator  by  survivor, 

when  the  latter  desires  to  continue  suit §  373    p.  553 

SEAL, 

to  bond,  on  removal  for  grounds  other  than  prejudice  or 
local  influence,  or  in  controversies  between  citizens  of 
the  same  State,  claiming  land  under  grants  of  different 
States §  385    p.  574 

of  court  to  writs  of  error §  399     p.  603 

SECOND   CIRCUIT, 

districts  included  in §  204     p.  295 

SECOND   PETITION, 

whether   can  be  filed  for  removal  of  cause  to   Federal 

court  after  case  has  been  remanded §  391     p.  587 

SECRETARY   OF   TREASURY, 

recovery  against  collector  or  revenue  officer  acting  under 

orders  of,  execution §  380     p.  564 

condemnation  proceedings  by §  381     p.  565 

SECURITY, 

marshalling  of,  as  a  subject  of  jurisdiction  in  equity   .     .  §  2     p.  4 

when  required  upon  injunction  by  State  statute       ...  §  6     p.  9 

by  receiver §  256     pp.  381-383 

given  in  a  cause  prior  to  removal  to  Federal  court,  effect 

of  removal  on  same §  392     p.  588 

an  appeal  is  taken  when  it  is  allowed,  although  security 

is  not  filed  till  after  the  statutory  limit §  398     p.  602 

this  limitation  does  not  apply  to  writs  of  error  coram  nobis    §  398    p.  602 

on  writ  of  error  or  appeal §  400     pp.  604-605 

requisite  to  obtain  supersedeas §  402     p.  606 

not  required  in  writs  of  error  in  criminal  prosecutions  .  §  403  p.  610 
on  writ  of  error  from  Supreme  Court  to  State  courts  .  .  §  405  p.  615 
motion  to  dismiss  appeal  or  writ  of  error  for  frivolousness 

denied  when  united  with  motion  to  dismiss  for  defect 

in  bond §  406    p.  616 

See  also  Bail  ;  Recognizance  ;  Undertaking. 


INDEX.  801 

SECURITY   FOR   COSTS, 

plaintiff  in  error  or  appellant  to  give  undertaking  or  other 

security  to  clerk  of  United  States  Supreme  Court     .     .     §  331     p.  484 
See  also  Costs. 
SEIZURE, 

burden  of  proof  in  suits  where  any  seizure  is  made  pur- 
suant to  an  act  providing  for  or  regulating  collection  of 

duties  on  imports  or  tonnage §  268     p.  405 

SELDEN,    LORD   CHANCELLOR, 

language  of,  respecting  length    of   chancellor's   foot    as 

being  the  measure  of  jurisdiction  in  equity       ....  §  1     p.  1 

SENATE, 

introducing  in  evidence  extracts  from  journal  of      ...     §  268     p.  400 
SENATORS, 

exemption  of,  from  service  of  process §    98     p.  159 

when  writ  of  ne  exeat  republica  cannot  be  issued  against    .     §  262     p.  390 
SENTENCE, 

stay  of,  on  review  in  Circuit  Court,  of  conviction  had  in 

District  Court §  401     p.  611 

Circuit  Court  pronouncing  an    affirmance   of  conviction 

had  in  District  Court §  404     p.  612 

SEPARABLE   CAUSES    OF   ACTION, 

removal  to  Circuit  Court  in  certain  cases  of §  383     p.  568 

SEPARABLE   CONTROVERSIES, 

See  Removal  of  Causes. 

SEPARATE   DEFENDANTS, 

right  to  appeal  or  bring  error §  397     p.  599 

SEPARATE   ESTATE, 

of  married  women.     See  Married  Women. 
SEQUESTRATION, 

definition  of §  347     p.  509 

writ  of,  when  will  be  issued §  149     p.  221 

of  goods,  effect  upon,  of  removal  of  cause  to  Federal  court     §  392     p.  588 
See  also  Enforcement  of  Decrees  and  Orders. 
SEQUESTRATORS, 

appointment  of §  347     p.  510 

may   be  put  in  possession   by  means   of  writ  of  assis- 
tance         §  348    pp.  510-511 

SERVANT, 

how  far  decisions  of  State  courts  upon  law  of  master  and 

servant  are  binding  upon  Federal  tribunals      ....     §  375     p.  557 
See  also  Negligence. 
SERVICE, 

of  subpoena  ad  respondendum,  rules  relative  to      .     §§94-98     pp.  151-160 

affidavit  of,  formalities  in §  271     p.  407 

of  subpoena  ad  testificandum §  276     p.  412 

fact  of  service  of  process  upon  defendant  should  appear 

affirmatively  upon  face  of  decree §  325     p.  474 

51 


802  INDEX. 

SERVICE  —  continued. 

of  writ  of  attachment  for  contempt §  346     pp.  507-509 

of  pleading,  how  far  State  practice  respecting,  is  followed     §  300     p.  530 
of  writ  and  process,  how  far  State  practice  followed  res- 
pecting      §  360     p.  530 

of  writ  of  error §  399     p.  603 

failure  to  serve  citation  on  defendants  in  error    ....     §  399     p.  604 
of  subpoena.     See  also  Process;  Subpoenas  to  Appear  and  Answer. 

SET-OFF, 

as  a  subject  of  jurisdiction  in  equity §  2     p.  4 

SETTLING, 

bills  of  exceptions §  377     p.  560 

SEVENTH   CIRCUIT, 

districts  included  in §  204    p.  295 

SHAREHOLDERS, 

efforts  of  plaintiff  to  secure  action  by,  on  part  of  stock- 
holder to  be  set  forth §  76     p.  128 

obtaining  injunction  in  suit  affecting  corporation     ...     §  207     p.  299 
See  also  Stockholder. 

SHERIFF, 

taking  goods  before  removal  of  cause  to  Federal  court, 

effect  of  removal  upon §  392     p.  588 

SHIP, 

injunction  to  restrain  sailing  of  a §  210     p.  302 

SICKNESS, 

of  judge,  who  to  act  in  case  of     .     .     , §  204    p.  290 

SIGNATURE, 

of  counsel  to  bill §  86  p.  141 

to  bill,  want  of,  ground  of  demurrer §  108  p.  176 

to  answer §  151     pp.  223-224 

to  replication §  159  p.  233 

of  counsel  to  amendments §  162  p.  236 

of  counsel  to  cross-bill §  172  p.  252 

of  counsel  to  bill  of  revivor §  180  p.  263 

to  notice  of  motion §  197  p.  283 

of  counsel,  when  necessary  to  petition  for  intervention     .  §  202  p.  292 

to  affidavit §  273  p.  408 

to  bills  of  exceptions §377  p.  560 

of  clerk  to  authentication  of  record  on  appeal     ....  §  403  p.  607 

SIMILAPtLY   SITUATED, 

necessary  parties  in  suits  by  complainant  on  behalf  of  him- 
self and  others §  46     pp.  88-89 

suits  on  behalf  of  persons.     See  Parties. 
SIX  MONTHS'   RULE, 

preferences  in  railroad  foreclosure  suits  regulated  by  .     .     §  243     p.     350 
SIXTH   CIRCUIT, 

districts  included  in §  204     p.  295 

SLANDERS, 

rarely  if  ever  enjoined §  12    p.  17 


INDEX.  803 

SLAVE   TRADE, 

jurisdiction  of  suits  under  laws  relating  to §  15     p.  22 

SMITH'S    CHANCERY   PRACTICE, 

referred  to  in  history  of  the  practice  of  taking  bills  pro 

confcsso §  104     p.  167 

SOLICITOR, 

signature  of,  to  bill §  86     p.  141 

to  sign  notice  of  motion §  107     p.  283 

signature  of,  to  petition  for  intervention §  202     p.  292 

not  usually  appointed  receiver §  255     p.  380 

costs  as  between  solicitor  and  client §  336     pp.  497-498 

SOLICITOR   OF   THE   TREASURY, 

introduction  of  papers,  &c.  in  the  office  of,  in  evidence       .     §  268     p.  398 
SOMERS,    LORD   CHANCELLOR, 

labors  of,  in  widening  jurisdiction  of  courts  of  equity  .     .  §  1     p.  2 

SOUTH   CAROLINA, 

divided  into  two  districts §  26     p.  52 

counties,  times,  and  places  of 
holding  court  therein  enumer- 
ated             §  26     p.  52 

districts  of,  included  within  Fourth  Circuit §  204     p.  295 

SOUTH  DAKOTA, 

constitutes  one  district §  26     p.  52 

districts  of,  included  within  Eighth  Circuit §  204     p.  295 

SOUTHERN   DISTRICT   OF    NEW   YORK, 

limitation  of  jurisdiction §  23     p.  32 

special  limitation  upon  jurisdiction  of  Circuit  Court  for    .         §  23     p.  32 
SOVEREIGNS, 

when  cannot  be  sued §  35     p.  68 

SPECIAL   APPEARANCE, 

defined §  99     p.  161 

SPECIAL   CIRCUMSTANCE, 

bill  to  impeach  decree  on  account  of §  64     p.  110 

SPECIAL   DAMAGE, 

necessity  of  alleging,  to  obtain  injunction §  207     p.  300 

SPECIAL   GUARDIAN, 

citizenship  of,  does  not  affect  jurisdiction §  19     p.  26 

SPECIAL   INJUNCTIONS, 

distinguished  from  other  forms §  205     p.  297 

See  also  Injunctions. 
SPECIAL   ORDER, 

prayer  for  relief  in  cases  of §  83     p.  136 

if  asked  for  pending  the  suit,  in  prayer  for  relief,  need  not 

be  repeated  in  prayer  for  process §  S5     p.  140 

SPECIAL   RELIEF, 

prayer  for §  83     p.  130 

SPECIAL    REPLICATIONS, 

not  allowed §  76     p.  127 

long  obsolete §  156     p.  230 


804  INDEX. 

SPECIFIC   CHATTEL, 

injunction  to  restrain  alienation  of §  210     p.  302 

SPECIFIC   PERFORMANCE  OF   CONTRACT, 

as  a  ground  of  equitable  jurisdiction §  2     p.  4 

of  contract  of  insurance §  11     p.  13 

for  sale  of  corporate  stock §  11     p.  13 

of  guaranty §  11     p.  14 

not  enforced  when  defendant  has  power  of  revocation  .     .  §  12     p.  19 

to  sell  corporate  stock,  when  not  enforced §  12     p.  19 

to  build  bridge,  when  not  enforced §  12     p.  20 

as  against  State §  37     pp.  71-77 

■who  necessary  parties  to  suits  for §  44     p.  84 

alternative  relief  in  action  for §  70    p.  119 

bill  for,  what  to  contain §  84     p.  139 

cross-bills  need  not  be  filed  in  certain  actions  for  ...  §  171  p  247 
injunctions  to  enforce,  of  covenants  and  other  contracts 

relating  to  land §  208     pp.  300-301 

injunctions  to  compel  the  performance  or  prevent  the  breach 

of  contracts  not  affecting  land §  220    pp.  318-319 

Lord  St.  Leonards'  Act  permitting  master  to  execute  deed 

or  other  written  instrument  in  the  name  of  party  who 

refuses  to  do  so §  349     pp.  511-512 

SPEEDY   HEARING, 

writs  of  error  in  criminal  cases  advanced  to §  403     p.  610 

SPONSIO   JUDICIALIS, 

the  possible  origin  of  feigned  issues §  304     p.  449 

STARE   DECISIS, 

rule  of,  how  far  applied  in  equity §  1     p.  1 

STATES, 

jurisdiction  of  controversies  between §  3     p.  5 

"                        "                  "         citizens  of  different  §  3    p.  5 

bill  by §  12     p.  16 

where  sued §  14    p.  20 

practice  when  sued  in  Supreme  Court §  14    p.  20 

controversies  affecting,  jurisdiction  of  United  States  Su- 
preme Court  over §  14     pp.  20-21 

jurisdiction  of  Federal  courts  in  controversies  between 

citizens  of  different •     .  §  18     p.  26 

jurisdiction  of  Federal  courts  in  cases  of  conflicting  grants 

by  different §  20     pp.  27-28 

laws  of,  declaring  person  civilly  dead,  as  preventing  filing 

bill  in  equity §  28    p.  64 

as  plaintiffs  to  bills  in  equity §  29     p.  61 

when  cannot  be  sued §  35     p.  68 

as  defendants,  liability  of,  to  suits  by  private  persons         §  37     pp.  71-77 

specific  performance  as  against  a §  38     p.  77 

as  defendant,  liability  to  suit  by  another  State    ...      §  38     pp.  77-78 

whether  a  tribe  of  Indians  constitutes  a  foreign  ....  §  38  p.  78 
statute  of,  authorizing  one  or  more  members  of  voluntary 

association  to  represent  the  others  in  the  courts    ...  §  45    p.  88 


index.  805 

STATES  —  continued. 

necessary  parties  to  suit  against,  to  restrain  illegal  tax      .         §  52     p.  98 

when  necessary  party  to  a  decree §  53     p.  99 

liberal  amendments  in  favor  of §  1G0     p.  234 

public  acts  of,  how  introduced  in  evidence §  208     p.  404 

how  far  the  practice  of  the  State  courts  is  followed  in  Fed- 
eral courts §  360     p.  529 

court  of,  has  not  power  to  grant  a  writ  of  habeas  corpus  to 

a  person  held  under  color  from  the  United  States      .     .     §  366     p.  544 
laws  of,  when  to  be  regarded  as  rules  of  decision      ...     §  375     p.  556 
See  also  Practice  at  Common-Law. 
STATE   COURTS, 

jurisdiction  over  cases  affecting  ambassadors,    ministers, 

and  consuls §  3     p,  5 

property  in  custody  of,  jurisdiction  of  Federal  court  over     §  9     pp.  11-12 

concurrent  jurisdiction §  15     p   °1 

how  far  can  interfere  by  injunction  with  matters  in  Fed- 
eral courts §  211     p.  303 

when  decisions  of,  binding  upon  Federal  tribunals  .      §  375     pp.  556-559 
rules  of  decision  made  by,  prior  to  removal  to  Federal  tri- 
bunals  will   usually   be   followed    in    the   latter    after 

removal §  391     p.  587 

review  by  writ  of  error  of  judgments  of §  394     p.  594 

writs  of  error  from  Supreme  Court  to  State  courts  .     §  405     pp.  612-616 
See  also  Removal  of  Cause. 
STATE   OF   FACTS, 

using,  on  references  before  master §  312     pp.  459-460 

See  also  Facts;  Findings. 
STATE    OFFICER, 

removal  not  enjoined S  12     p.  17 

STATE   PRACTICE. 

See  Practice  at  Common-Law. 

STATE   STATUTE, 

diminishing  or  destroying  an  equitable  remedy §  6     p.  8 

enlarging  powers  of  courts  of  common  law §  6     p.  8 

giving  courts  of  probate  exclusive  jurisdiction §  6     p.  8 

regulating  practice  in  courts  of  equity §  6     p.  8 

requiring  tender  by  mortgagor  before  filing  bill  for  redemp- 

tion §  6     p.  8 

regulating  foreclosure  of  mortgages §  6     pp.  8-9 

regulating  redemption  of  mortgages §  6     pp.  8-9 

requiring  bond  upon  injunction §  6     p.  9 

requiring  leave  from  a  State  court  before  suing   upon  an 

injunction §  6     p.  9 

requiring  presentation  of  claim  to  comptroller  before  suing         §  6     p.  9 

influence  on  Federal  courts  of  equity §§  6-8     pp.  8-10 

authorizing  submission  on  stipulation §  6     p.  9 

authorizing  suit  to  quiet  title  by  person  out  of  possession 

of  land §  7    p.  9 


806  INDEX. 

STATE    STATUTE  —  continued. 

authorizing  suit  to  set  aside  will  for  fraud §  7     p.  9 

authorizing  suit  to  set  aside  probate  of  will  for  fraud  ...        §  7     p.  9 
imposing   individual  liability   on   stockholders  of  corpora- 
tions             §  7     p.  9 

creating  a  new  right,  enforced  by  Federal  courts,  in  law  or 

equity §  7     pp.  9-10 

authorizing  appointment  of  receiver §  7     p.  10 

authorizing  creditor's  bill §  7     p.  10 

empowering  guardian  to  mortgage  ward's  estate §  7     p.  10 

of  limitation §8     p.  10 

do  not  bar  the  United  States §  8     p.  10 

followed  by  Federal  courts  of  equity  in  fore- 
closure suits §  8     p.  10 

followed  in  equity  in  suits  against   executors 

and  administrators §  8     p.  10 

when  followed  in  actions  at  common  law  .     .     .      §  8     p.  10 
when  followed  in  actions  at  common  law  upon 

patents  and  copyrights §  8     p.  10 

respecting   admissibility  of  evidence,  how  far  followed   in 

Federal  courts §  274     p.  410 

See  also  Practice  at  Common  Law;  Statutes. 

STATE   TAXES, 

bill  to  restrain  collection  of,  what  to  contain §  84     p.  139 

STATING   PART, 

of  bill §  67     pp.  113-114 

STATUTE, 

States  cannot  by,  impair  the  jurisdiction  of  Federal  courts 

of  equity §  6     pp.  8-9 

nor  regulate  the  practice  therein §  6     pp.  8-9 

State  creating  new  rights  enforceable  in  Federal  courts     .  §  7     pp.  9-10 
authorizing  injunctions  in  a  new  class  of  cases     ....  §  8     p.  10 
of  limitation  of  the  States,  as  affecting  jurisdiction  of  Fed- 
eral courts §  8    p.  10 

setting  forth,  in  bills §  6S     p.  115 

conformity  with,  allegations  as  to,  in  bills §  7S     p.  133 

pleas  of §  131     pp.  196-197 

necessity  of  private  party  alleging  special  damage  on  ap- 
plying for  injunction  founded  on  violation  of  statute     .  §  207     p.  300 

injunctions  authorized  by §  222     pp.  319-321 

of  the  United  States,  introducing  in  evidence      ....  §  268     p.  405 

of  State,  rulings  upon,  at  hearing §  298     p.  443 

of  the  States,  when  to  be  taken  as  rules  of  decision      .     .  §  375    p.  556 
construction  of  State  statute  by  State  court,  how  far  bind- 
ing upon  Federal  tribunals §  375    p.  558 

whether  a  State  statute  has  been  passed  by  the  legislature 
is  a  question  as  to  which  the  Federal  courts  will  follow 

the  decisions  of  such  State §  375     p.  558 

of  the  United  States,  review  by  writ  of  error  of  decision 

affecting §  394     p.  594 


INDEX.  807 

STATUTE  —  continued. 

of  United  States,  writs  of  error  to  State  courts  in  cases 

affecting §  405     p.  612 

how  introduced  in  evidence.  See  also  Evidence;  Practice  at  Com- 
mon Law;  State  Statute;  and  for  recent  important  statutes  see 
Appendix,  pp.  G53-G64. 

STATUTE   LAW, 

of  States,  how  far  followed  in  Federal  tribunals       ...     §  375     p.  557 

STATUTE   OF   FRAUDS, 

can  be  raised  by  demurrer §  108     p.  176 

Federal  courts  follow §  108     p.  17G;  §  375     p.  558 

STATUTES   OF   LIMITATIONS, 

Federal  courts  follow,  in  actions  at  common  law      ...     §  375     p.  558 

not  binding  upon  the  United  States §  375     p.  558 

See  also  Limitations. 

STATUTORY   SERVICE, 

of  subpoena.     See  Subpoznas  to  Appear  and  Answer. 

STAY, 

bill  to  obtain  stay  of  proceedings  at  law §  64     p.  Ill 

injunctions  to  stay  proceedings  in  other  courts    ....     §  210     p.  302 

§  2 11     pp.  3(10-305 
bill  to  suspend  or  avoid  the  operation  of  decrees .     .      §  359     pp.  527-528 

of  execution §  380     p.  5G4 

proceedings  on  appeal  or  writ  of  error  from  Circuit  Court, 

where  one  of  parties  is  dead §  397    p.  600 

interest  awarded  where  appeal  was  taken  for  delay       .     .     §  409     p.  624 

on  appeal §402     pp.  606-607 

upon  appeal  in  habeas  corpus  proceedings    ......§  402     p.  607 

writ  of  error  to  judgment  of  conviction  operates  as  stay  of 

proceedings  without  filing  security §  402     p.  607 

on  review  in  Circuit  Court  of  conviction  had  in  District 

Court §  404     p.  611 

STIPULATION, 

effect  of  State  statute  authorizing §  6     p.  9 

not  to  remove  a  specified  suit  into  a  Federal  court   ...     §  383     p.  570 
in  cause  made  before  removal  to  Federal  court,  effect  of 

removal  on  same §  392     p.  588 

to  pass  a  cause  without  placing  it  at  the  foot  of  the  docket 

invalid §  403     p.  620 

ST.  LEONARDS,  LORD, 

statute  passed  at  instance  of,  permitting  master  to  execute 
deed  or  other  written  instrument  in  the  name  of  a  party 
who  refuses  to  do  so §349     pp.  511-512 

STOCK, 

specific  performance  of  contract  for  sale  of §  11     p.  13 

when  contract  for  sale  of,  not  specifically  enforced  .     .     .  §  12     p.  19 

injunction  to  restrain  transfer  of §  210     p.  302 


808  INDEX. 

STOCKHOLDERS, 

State  statutes  imposing  liability  to  creditors  upon    ...  §  7     p.  9 

individual  liability §  7     p.  9 

bill  by §  11     p.  13 

when  might  be  made  a  party  to  suit  against  corporation 

under  English  practice §  43     p.  82 

■when  necessary  parties  to  suits  affecting  corporation     .     .  §  45     p.  88 

parties  to  suits  by,  on  behalf  of  others  similarly  situated.  §  47     p.  89 

suing  as  representatives  of  a  class §  48    p.  90 

necessary  parties  in  suits  to  set  aside  foreclosure  of  rail- 
road mortgages §  53     p.  100 

necessary  averments  in  suits  by §  76     p.  127 

suit  by,  when  to  be  verified §  87     p.  142 

allowing  them  to  intervene  in  suits  affecting  corporations  §  201     p.  291 

obtaining  injunction  in  suit  affecting  corporation    ...  §  207    p.  299 

appointing  receivers  of  corporation  property,  in  suits  by  .  §  240     p.  344 

not  usually  appointed  receiver §  255     p.  379 

when  can  have  suit  discontinued  as  against  majority  of 

directors §  291     p.  434 

See  also  Parties. 

STORY,  JUDGE, 

labors  of,  in  widening  jurisdiction  of  courts  of  equity    .     .         §  1     p.  2 
classification  by,  of  suits  by  a  complainant  on  behalf  of 

himself  and  others  similarly  situated §  46     p.  88 

view  of,  as  to  multifariousness  in  bills §  73     p.  123 

quotation  from,  on  the  principle  of  amendments  to  an- 
swers    §167    p.  242 

suggestions  as  to  bill  of  revivor §  177     p.  259 

practice  as  to  supplemental  bills  in  cases  of  personal  rep- 
resentatives  §  187    p.  271 

STRANGERS, 

whether  to  be  made  parties §  43     p.  82 

enjoining,  from  committing  trespass §  215    p.  309 

STREETS, 

State  statutes  imposing  assessments  upon §  7    pp.  9-10 

SUBJECT-MATTER, 

failure  of  plaintiff  to  have  interest  in,  a  ground  of  de- 
murrer  §  108     p.  174 

value  of,  beneath  dignity  of  court,  a  ground  of  demurrer     §  108     p.  175 

SUBMISSION, 

of  cases  on  printed  arguments §  408    p.  619 

SUBP(ENA, 

prayer  of,  in  bills §  85    pp.  140-141 

motion  to  set  aside,  the  proper  remedy  where  process  is 
prayed  against  defendant  in  a  representative  capacity, 
and  the  subpoena  is  issued  against  him  generally  ...       §  85    p.  141 

defects  in,  waived  by  general  appearance §  101     p.  162 

failure  to  serve,  upon  parties  against  whom  process  prayed 

not  ground  of  demurrer §  108     p.  177 


INDEX.  809 

SUBPCEN  A  —  continued 

in  the  nature  of  a  scire  facias  the  ancient  practice  of  reviv- 
ing suits §  178     p.  260 

ad  testificandum §  275     p.  411 

for  witnesses  to  attend  before  master §  313     pp.  160-461 

See  also  Practice  at  Common  Law. 
SUBPCENAS   TO   APPEAR   AND   ANSWER, 

defined §  91     p.  148 

requisites  of §  01     p.  148 

form  of §  92     p.  150 

issue  of §  92     p.  150 

bill  first  to  be  filed §  92    p.  150 

loties  quoties §  92     p.  150 

when  necessary §  93     pp.  150-151 

service,  how  to  be  made,  generally §  94    pp.  151-152 

upon  corporations §  95     pp.  153-155 

substituted §  96     pp.  155-157 

statutory §  97     pp.  157-159 

exemptions  from §  98     pp.  159-160 

SUBSEQUENT   LIENORS, 

whether  necessary  parties  to  foreclosure  suit      ....  §  52     p.  96 

SUBSEQUENT  MATTER, 

bill  to  impeach  decree  for §  64     p.  110 

SUBSTITUTED   SERVICE, 

of  subpoenas     ....  §  96     pp.  155-157 

of  notice  of  motion §  197     p.  283 

SUCCESSFUL   PARTY, 

sometimes  obliged  to  pay  costs  in  equity §  327    p.  478 

when  may  be  obliged  to  pay  costs §  327     p.  480 

SUGDEN,   SIR   EDWARD, 

statute  passed  at  instance  of,  permitting  master  to  execute 
deed  or  other  instrument  in  the  name  of  a  party  who 

refuses  to  do  so §  349     pp.  511-512 

See  St.  Leonards,  Lord. 
SUITS, 

multiplicity  of,  as  a  ground  of  equitable  jurisdiction  .     .  §  2     p.  4 

arising  under  Constitution  or  laws  of  the  United  States  .         §  17     p.  25 

injunctions  to  restrain  multiplicity  of §  209     pp.  301-302 

by  receivers §249     pp.  369:572 

defined,  for  the  purpose  of  writ  of  error  from  Supreme 

Court  to  State  court §  405     p.  614 

SUMMONS, 

endorsement  of,  how  far  State  practice  respecting,  followed     §  360     p.  530 
SUNDAY, 

service  of  subpoena  on §  94    p.  152 

injunction  refused  to  prevent  the  running  of  cars  on    .     .     §  223     p.  321 
writ  of  attachment  for  contempt  not  to  be  served  on     §  346     pp.  507-509 
SUPERSEDEAS, 

when  judgment  can  be  executed  despite §  397    p.  598 

practice  to  obtain §  402    pp.  806-607 


810  INDEX. 

SUPPLEMENTAL    ANSWER, 

objects  of,  and  when  allowed  to  be  filed §  154    p.  228 

See  also  Amendments. 
SUPPLEMENTAL  BILL, 

jurisdiction  of §  21     p.  28 

not  original §  64     p.  110 

See  also  Correction  of  Decree  otherwise  than  by  Appeal. 
See  Bills  of  Revivor. 
SUPPLEMENTARY   PROCEEDINGS, 

jurisdiction  of §21     pp.  28-29 

to  executions §  380     pp.  562-565 

SUPREME   COURT  OF   THE   UNITED   STATES, 

jurisdiction  when  not  exclusive §  11     p.  21 

appellate  jurisdiction  authorized  by  Constitution      ...  §  3     p.  5 

original  jurisdiction §  3     p.  5 

jurisdiction  affecting  ambassadors,  ministers,  and  consuls  §  3     p.  5 

original  jurisdiction §  14     pp.  20-21 

exclusive  jurisdiction §  14    pp.  20-21 

provisions  as  to  holding  terms  of  court  in  cases  of  conta- 
gious or  epidemic  disease §  26     p.  35 

territorial  jurisdiction  and  terms  of §  26     p.  35 

rules  of  practice  promulgated  by §  27     pp.  50-57 

ninetieth  rule,  adopting  practice  of  High  Court  of  Chan- 
cery in  England §  27     p.  57 

motions  in §  194     p.  279 

practice  of,  as  to  the  granting  of  orders §  204     p.  295 

costs  in,  when  judgment  or  decree  is  reversed  for  want  of 

jurisdiction  in  court  below §  327     p.  480 

costs  in.     See  Costs. 

appeals  to,  in  habeas  corpus  proceedings §  368    p.  548 

objection  that  bond  given  on  removal  of  cause  was  defec- 
tive for  want  of  acknowledgment  not  to  be  taken  for 

first  time  in §  385    p.  574 

amendments  in §  391     p.  587 

when  appeal  to,  may  be  taken  to  without  reference  to 

amount  involved §  393     p.  590 

costs  where  judgment  or  decree  is  reversed  in,  for  want  of 

jurisdiction §  393     pp.  5S9-590 

See  also  Writs  of  Error  and  Appeals. 
SUPREME   COURT,   DISTRICT   OF   COLUMBIA, 

appeals  from §  394     p.  592 

SURETIES, 

of  administrator,  suit  against §  11  P-  1- 

necessity  of  joining  principal  with,  in  suit  against  ...  §  42  p.  82 

of  administrator,  necessary  parties  in  suits  against  ...  §  52  p.  96 

of  receiver,  discharge  of §  256  p.  38- 

SURPRISE, 

if  plaintiff  has  evidence  likely  to  take  defendant  by,   it 

should  be  indicated  in  the  bill §  69     p.  117 

bill  to  impeach  decree  for §  358     pp.  526-527 


INDEX.  811 

SURVIVAL   OF   ACTIONS.     See  Abatement  and  Revivor 
SURVIVORS, 

right  of,  to  proceed  with  appeal §  397    p.  599 

SUSPENDING   DECREES, 

bills  for        §  359     pp.  527-528 

SWEARING, 

to  affidavits,  formalities  regulating §  270    p.  406 


TAKING  BILLS  PRO  CONFESSO, 

when  may  be  done §  103     p.  164 

as  against  persons  under  disability  .  .  §  103  p.  164 
not  before  guardian  ad  litem  appointed  §  103  p.  164 
case  where  guardian  refuses  to  answer     §  103     p.  164 

practice  in §  104     pp.  1G5-169 

appeals  from  decrees §  101     p.  169 

motion  to  set  aside  decrees  obtained  by §  104     p.  169 

TAKING   TESTIMONY. 

See  also  Depositions;  Evidence. 
TALBOT, 

decision  of,  respecting  parties  to  suits   against    corpora- 
tions           §  43    p.  83 

TANEY,    CHIEF  JUSTICE, 

labors  of,  in  widening  jurisdiction  of  courts  of  equity  .     .  §  1     p.  2 

upon  the  jurisdiction  of  the  Federal  courts §  5     p.  6 

as  to  how  far  English  Courts  of  Chancery  are  models  in 

this  respect §  5     p.  6 

view  of,  as  to  when  appeal  lies  from  order §  203     p.  204 

TAXATION, 

of  costs §  337     p.  498 

TAXES, 

bill  to  restrain  collection  of,  what  to  contain §  84     p.  139 

bill  to  collect,  not  sustained §  12     p.  16 

bill  to  levy,  not  sustained §  12     p.  16 

receiver  not  appointed  to  levy  or  collect      .     .  §  12     p.  16;  §  244     p.  357 
no  injunction  against  collection  of  internal  revenue      .     .     .     §  12     p.  16 
TAXPAYER'S    BILL, 

as  a  subject  of  jurisdiction  in  equity  .     .     .     .     §11     p.  11;  §  12     p.  16 

TAX   SALE, 

bill  to  set  aside,  what  to  contain §  84     p.  139 

TECHNICAL   EXPRESSIONS, 

wm'  of,  in  bills  unnecessary §  78     p.  131 

TENANT, 

whether  a  necessary  party  in  suits  affecting  estate  ...        §  45     p.  80 

suits  by  one  or  more  on  behalf  of  others §  49     p.  91 

in  common,  necessai'y  parties  to  partition  suit      ....       §  53     p.  100 

TEND  Ell, 

omission  of,  when  ground  for  demurrer §  34     p.  140 


812  INDEX. 

TENNESSEE, 

divided  into  three  districts §  26    p.  52 

counties,  times,  and  places  of 
holding  court  therein  enu- 
merated       §  26     pp.  52-53 

districts  of,  included  within  Sixth  Circuit §  204    p.  295 

who  can  be  made  receiver  in §  255    p.  381 

TERMS, 

of  holding,  United  States  Supreme,  Circuit,  and  District 

Courts §  26     pp.  35-58 

imposed,  on  overruling  demurrer §  122     pp.  185-186 

imposed  upon  the  issue,  denial,  dissolution,  or  continuance 

of  an  injunction §  237     pp.  338-340 

upon  the  appointment  of  receivers  and  preferences  in  fore- 
closure suits §  243    pp.  347-355 

decrees  can  regularly  be  entered  only  during  ...     §  324     pp.  473-474 

correcting  judgment  during §  379     pp.  561-562 

imposing  on  amendment  of  writ  of  error §  399     p.  603 

TERRITORIAL    CORPORATIONS, 

suits  by,  or  against §  17     p.  25 

TERRITORIAL   COURTS, 

excluded  from  category  of  Federal  courts  having  equity 

jurisdiction §  13     p.  20 

reviewing  disputed  questions   of  fact  on   appeals    from 

judgment  and  decrees  of,  in  non-jury  causes     ....     §  394     p.  591 
writs  of  error  from  Supreme  Court  of  United  States  to 

judgments  of §  394     pp.  591-592 

appeals  from  Supreme  Court  of  any  Territory       ....     §  394    p.  593 
See  also  Writs  of  Error  and  Appeals. 

TERRITORIAL   JURISDICTION, 

of  Supreme,  Circuit,  and  District  Courts      ....      §  26     pp.  35-58 

TERRITORY, 

public  acts  of,  how  introduced  in  evidence §  268    p.  404 

TESTE, 

of  writs  of  error §  399    p.  602 

TESTIMONY, 

perpetuation  of,  as  a  subject  of  jurisdiction  in  equity  .     .  §  2     p.  4 

bills  for  perpetuating §    64     p.  110 

de  bene  esse,  issuing  subpoena  in  case  of  taking     ....     §275     p.  411 
taken  in  equity  which  may  be  used  in  other  courts  ...     §  278     p.  413 

bills  to  perpetuate §  279     pp.  413-416 

de  bene  esse,  bill  to  take §  280     p.  416 

taken  before  cause  is  at  issue §  282     pp.  418-419 

"     after         "  « §  283     pp.  419-420 

prpsent  method  of  taking,  within  the  jurisdiction     .     §  284     pp.  420-423 
takpn  after  a  cause  is  at  issue  and  beyond  the  jurisdiction 

of  the  court §  285     p.  423 

common-law  procedure  respecting §  360     pp.  529-530 

See  also  Depositions;  Evidence;  Practice  at  Common  Law. 


INDEX.  813 

TEXAS, 

divided  into  three  districts §  26     p.  53 

counties,  times,  places  of  hold- 
ing court  therein  enumer- 
ated           §  20     pp.  53-55 

districts  of,  included  within  Fifth  Circuit §  204     p.  295 

whether  receiver-general  of,  can  be  appointed  receiver      .     §  255     p.  380 
introducing  in  evidence  transcripts  from  certain  books 
of  the  District  Courts  in §  268    p.  401 

THIRD   CIRCUIT, 

districts  included  in §  204     p.  295 

THOMAS  JEFFERSON, 

subpoena  duces  tecum  against,  on  trial  of  Aaron  Burr  .     .       §  98     p.  159 

THREATS, 

as  constituting  a  ground  of  jurisdiction  in  equity     ...  §  2     p.  4 

THURLOW,   LORD, 

first  injunction  to  restrain  trespass,  granted  by    ....     §  215     p.  309 

TIME, 

allegations  as  to,  in  bills §  67     p.  114 

for  appearance §102     pp.  162-163 

enlargement  of,  for  cause  shown §  103     p.  164 

to  file  demurrer,  plea  or  answer  to  bill §  111     PP-  178-179 

within  which  to  file  plea §  135    pp.  200-201 

answer §  149     p.  221 

replication §  157     p.  231 

cross-bills §  170     p.  246 

bills  of  revivor §  181     p.  263 

to  be  given  by  notice  of  motion §  197     p.  283 

of  application  for  interlocutory  injunctions     ...     §  228     pp.  326-327 

to  serve  writ  of  injunction §  234     pp.  334   335 

when  a  receiver  may  be  appointed §  252     p.  377 

when  issue  of  law  will  be  directed §  303     p.  449 

within  which  reference  to  be  brought  on  before  master     .     §  309     p.  455 
decrees  giving  defendants  a  certain  specified  time  within 

which  to  show  cause  against  a  decree,  &c.   §  322     p.  470;  §  323     p.  473 

of  entering  decrees §  324     p.  473 

decrees  for  an  account  should  specify  the  time  from  which 

the  account  is  to  be  taken §  325     p.  476 

to    move    for   an    order   requiring    non-resident   to   p;ive 

security  for  costs §  338     p.  499 

to  make  writ  of  attachment  for  contempt,  returnable    .     .     §  345     p.  507 
of  pleading,  how  far  State  practice  respecting,  is  followed 

§  360    pp.  529-530 

when  motion  for  new  trial  must  be  made §  376     p.  559 

when  judgments  may  be  corrected  by  the  courts  that  ren- 
dered them       . §  379     pp.  561-562 

when  execution  can  be  issued  in  a  case  where  writ  of  error 

lies  to  the  Supreme  Court       §  380     p.  562 

for  removal  of  cause  where  there  are  several  defendants, 

and  time  for  removal  has  expired  as  to  one       ....     §  385     p.  575 


814  INDEX. 

TIME  —  continued. 

effect  of  consent  or  order  extending  time  to  answer,  on 

time  to  remove  cause §  385     p.  575 

when  right  to  replead,  after  removal  to  Federal  court,  ex- 
pires         §  391     p.  5S5 

when  remand  of  cause  improperly  removed  to  Federal 

court  may  be  demanded §  393     p.  590 

effect  of  death  of  party  before  time  allowed  for  taking  ap- 
peal or  bringing  writ  of  error  has  expired §  397     p.  599 

within  which  appeal  or  writ  of  error  must  be  taken       §  398     pp.  601-602 

to  serve  writs  of  error  and  citations §  399     p.  603 

within  which  to  take  appeals §  401     p.  605 

when  appeal  may  be  taken §  401     p.  605 

to  file  security  for  costs  on  application  for  supersedeas  .     .     §  402     p.  606 

to  return  writ  of  error §  403     pp.  607-608 

within  which  plaintiff  in  error  or  appellant  is  to  docket 

the  cause  in  United  States  Supreme  Court §  403     p.  608 

within  which  models,  diagrams,  and  exhibits  of  material 

must  be  transmitted  to  Supreme  Court  of  United  States     §  403     p.  608 

within  which  they  must  be  removed §  403     p.  608 

failure  of  plaintiff  in  error  to  docket  case  and  file  record 

in  time §  403     p.  609 

when  writs  of  error  must  be  made  returnable      ....     §  403     p.  609 
to  review  judgment,  order,  and  decrees  of  District  Court 

by  Circuit  Court §  404     p.  611 

before  hearing,  on  writ  of  error  from  Supreme  Court  to 

State  court §  405     p.  615 

when  motions  to  dismiss  appeals  and  writs  of  error  may 

be  made .     •     •     §406     p.  616 

to  serve  papers,  on  motion  to  dismiss  appeal  or  writ  of  error     §  406     p.  617 
within  which  appeals  may  be  submitted  on  printed  argu- 
ments  §408     p.  619 

allowed  counsel  on  argument  in  Supreme  Court   ....     §  408     p.  622 

to  move  for  rehearing  or  reargument §  408     pp.  622-623 

to  amend.     See  Amendments. 

TITLES, 

persons  claiming  property  under  inconsistent,  when  npces- 

sary  parties  to  suits §  44     p.  84 

of  demurrer §  112     p.  179 

of  affidavit §  271     p.  407 

of  decree §  325     p.  47  4 

evidence  of,  on  removal  of  suits  containing  controversies 
between  citizens  of  the  same  States,  claiming  land  under 

.grants  of  different  States §  387     p.  580 

suit  in  which  plaintiffs  claim  under,  what  to  be  regarded 

as  value  of  matter  in  dispute §  395     p.  596 

TOLLS, 

foreclosure  of  lien  upon §  11     p.  13 

TONNAGE, 

jurisdiction  of  suits  to  collect §  15     p.  22 


INDEX.  815 

TONNAGE  —  continued. 

burden  of  proof  in  suits  -where  any  seizure  is  made  pursu- 
ant to  an  act  providing  for  or  regulating  collection  of 
duties  on  imports  or  tonnage §  2GS     pp.  405-406 

TORTS, 

no  suits  against  United  States  in  cases  of §  15    p.  22 

TOTIES    QUOTIES, 

subpoena  to  appear  and  answer §  92     p.  150 

TOWN   BONDS, 

bill  by  holder  of §  11     p.  13 

taxpayer's  bill  to  prevent  payment  of §  53     p.  100 

See  Municipal  Bond. 

TRADE, 

injunction  to  prevent  revelation  of  secrets  of §  20G     p.  297 

no  injunction  against  corporation  for  merely  diminishing 

private  individual's  profits  of §  207     p.  300 

See  also  Monopoly. 

TRADEMARK, 

value  of  matter  in  dispute  in  suit  to  enjoin  use  of    .     .     .         §  1G     p.  24 
injunctions  to  restrain  unlawful  use  of    §210    p.  302;  §  218    pp.  317-318 

TRANSFER   OF   NOTES, 

injunction  to  prevent §  212     p.  305 

TRANSFER  OF   STOCK, 

injunctions  to  restrain §  210    p.  302 

TRANSLATION, 

of  foreign  documents,  to  accompany  record  on  appeal  .     .     §  403     p.  G08 

TREASURY, 

introduction  in  evidence  of  papers  in  the  office  of  the  so- 
licitors of  the §  2G8     p.  398 

introducing  in  evidence  transcripts  from  department  of  the     §  2G8     p.  399 

TREATIES, 

introducing  in  evidence §  2G8  p.  405 

review  by  writ  of  error  of  decision  in  State  court  affecting  §394  | 

■writs  of  error  in  State  courts  affecting §  405  p.  G12 

TRESPASS, 

injunctions  to  prevent §210     p.  302 

injunctions  to  restrain §215     p.  309 

TRIALS, 

common-law  procedure  respecting §  360     pp.  529-530 

notice  of,  how  far  State  practice  respecting,  is  followed 

§360    pp.  529-530 
principles  regulating  the  granting  of  new  trials   ....     §  376     p.  559 
See  also  Hearing;  Practice  at  Common  Law. 

TRUSTS, 

as  subjects  of  equity  jurisdiction §  2  p.  :i 

constructive §  2  p.  3 

express §  2  p.  3 


816  INDEX. 

TRUSTS  —  continued. 

implied §  2    p.  3 

resulting §  2     p.  3 

beneficiaries  under §  -     p.  3 

injunctions  to  enforce §  206  pp.  297-298 

when  receiver  will  be  appointed  in  suits  affecting    ...  §  240     p.  343 

impeaching  decrees  improperly  obtained  in  cases  of      .     .  §  358    p.  527 

TRUST  ESTATES, 

as  subjects  of  equity  jurisdiction §  11     p.  12 

costs  out  of §  335  pp.  490-497 

TRUST   PROPERTY, 

who  necessary  parties  in  suits  affecting §  45     p.  86 

allowing  beneficiaries  to  intervene  in  suits  affecting      .     .  §  201     p.  291 

TRUSTEE, 

bill  against §  11     p.  13 

accounting  by §  11     p.  14 

citizenship  of §  19     p.  26 

under   deeds   and  mortgages,  when  necessary  parties  to 

suits  affecting  property  covered  by §  45     p.  87 

when  not  a  necessary  party  in  suit  against  colleagues  for 

breach  of  trust §  52     p.  96 

of  active  trust,  when  necessary  party  to  suit  affecting  trust 

estate §  53    p.  99 

facts  showing  that  defendant  is  a,  must  be  pleaded  ...  §  69     p.  116 
effort  of  plaintiff  to  secure  action  by,  on  part  of  stockhold- 
ers to  be  set  forth §  76     p.  128 

petition  for  appointment,  removal,  or  resignation  of      .     .  §  199     p.  288 

allowing  beneficiaries  of  trust  to  intervene  in  suits  affecting  §  201     p.  291 

when  can  be  appointed  receiver  of  trust  estate      ....  §  255     p.  380 

TRUSTEES   OF   RAILROAD  MORTGAGE, 

when   not   necessary  parties  to  bondholders'   foreclosure 

suit §  51     p.  95 


u. 

UBERRIMA   FIDES, 

required  on  application  for  special  injunction     ....     §  232     p.  331 

ULTRA   VIRES, 

acts  when  enjoined  at  suit  of  stockholder §  12     p.  20 

when  act  by  corporation  not  enjoined §  12     p.  19 

UNDERTAKING, 

sometimes   required  that    party  omitted   from  bill   will 

conform  to  decree §  55     p.  10- 

to  abide  further  orders  of  the  court,  given  on  special  ap- 
pearance       ....     §  100     p.  162 

may  be  required  on  issue,  dissolution,  or  continuance  of 

injunction §  -3?     P-  ^3p 

by  receiver §  256    p.  381 


INDEX.  817 

UNDERTAKING  —  continued. 

plaintiff  in  error  or  appellant  to  give  undertaking  or  other 
security  to  clerk  of  United  States  Supreme  Court  tor 

costs §331    p.  484 

given  in  a  cause  prior  to  removal  to  Federal  court,  effect 

of  removal  on  same §  392     p.  5SS 

See  also  Security;  Supersedeas. 

UNINCORPORATED   ASSOCIATION, 

parties  to  suits  by  members  of,  and  on  behalf  of  others 

similarly  situated §  47     p.  89 

suing  as  a  corporation,  ground  of  demurrer §  108     p.  174 

See  also  Voluntary  Association. 

UNITED   STATES, 

not  bound  by  State  statutes  of  limitation §  8     p.  1U 

State  statutes  of  limitation  cannot  bar §  8     p.  10 

bill  by,  to  cancel  land  patent §u     p.  12 

bill  to  enforce  priority  of  payment ^  11     p.  12 

suits  against  and  suits  by     .  §  15     p.  21;  §  30     pp.  68-71;  §  03     p.  109; 

§  74    p.  125 
suits  arising  under  Constitution  or  laws  of     .       §  15     p.  21;  §  17     p.  2.j 

condemnation  proceedings  by §  15     p.  22 

when  cannot  be  sued §  3o     p.  68 

whether  President  thereof  can  be  sued §  35     p.  68 

as  defendant §  30     pp.  08-71 

filing  of  bills  and  informations  by §  0o     p.  109 

multifariousness  in  bill  by,  to  set  aside  land  patent  for 

fraud §  74     p.  125 

bill  filed  by,  to  vacate  patent  to  public  lands,  what  to  con- 
tain       §  81     p.  139 

service  of  subpoena,  when  United  States  is  a  party  ...       §  95     p.  153 

iuj  unction  cannot  be  issued  against §  223     p.  322 

when  costs  will  be  allowed  in  suits  to  adjust  claims  against     §  327     p.  479 
not  bound  by  any  State  statute  of  limitations     ....     §  375     p.  558 

appeals  on  behalf  of §  394     p.  592 

See  also  statutes  in  Appendix,  pp   658-603. 

UNITED  STATES  COURTS, 

how  far  can  interfere  by  injunction  with  matters  in  Slate 

courts §  211     p.  303 

See  also  Federal  Courts. 

UNITED   STATES   STATUTES    AND    Tit  KATIES, 

introducing  in  evidence §  208     p.  405 

UNITED   STATES   SUPREME    COURT. 

See  Supreme  Court  of  the  United  States. 

UNSOUND   MIND, 

persons  of.     See  Plaintiff  and  Defendant. 

USURIOUS   SECURITIES, 

bill  for  cancellation  of §  6     p.  9 

USURY, 

as  a  subject  of  equity  jurisdiction §  6    p.  9 

52 


818 


INDEX. 


UTAH, 

writ  of  error  to  review  judgments  of  Supreme  Court  of   .     §  394    p.  593 
time  within  which  cause  to  be  docketed  in  United  States 

Supreme  Court  in  case  of  appeals  or  writs  of  error  from     §  403     p.  608 
UTILE   PER   INUTILE   NON   VITIATUR, 

a  maxim  of  equity  pleading §  68    p.  116 


V. 

VACATION, 

petition  and  bond  for  removal  may  be  filed  during  .     .     •     §  385    p.  575 
VALUE, 

of  matter  in  dispute  to  confer  jurisdiction       ....      §  16     pp.  23-25 
bill  to  show  whether  amount  involved  exceeds  the  jurisdic- 
tional amount §  76     p.  128 

of  subject-matter  that  it  is  beneath  dignity  of  court,  a 

ground  of  demurrer §  108    p.  175 

of  matter  in  dispute  as  affecting  removal  of  cause  ...     §  385     p.  575 
of  matter  in  dispute  as  affecting  removal  of  suits  contain- 
ing controversies  between  citizens  of  the  same  State, 
claiming  land  under  grants  of  different  States       ...     §  387     p.  580 
of  amount  in  dispute,  as  affected  by  subsequent  events  in 

relation  to  right  to  remove  cause  to  Federal  court      .     .     §  391     p.  587 
when  appeal  to  Supreme  Court  of  the  United  States  is 

authorized,  irrespective  of  value  of  matter  in  dispute    .     §  393     p.  590 
of  matter  in  controversy  as  affecting  right  to  appeal     .     .     §  394     p.  592 
of  matter  in  dispute,  as  affecting  appeal  to  review  final  de- 
cree of  Circuit  Court  in  which  there  has  been  a  ques- 
tion of  jurisdiction §  394     p.  594 

of  matter  in  dispute,  as  affecting  right  to  appeal  to  Su- 
preme Court  of  the  United  States §  395     pp.  594-597 

of  matter  in  dispute  immaterial,  on  writ  of  error  from 
Supreme   Court  to   State  court  on  account  of  Federal 

question §  405     p.  616 

VENUE, 

of  affidavit §  272     p.  407 

VERDICT, 

of  jury  upon  an  issue,  how  reviewed §  305     p.  452 

trial  judge,  when  he  may  direct §  374     p.  556 

what  rules  relative  to,  govern  in  Federal  court     ...  §  374     p.  556 
State  statute  regulating  form  of,  in  Federal  court,  effect  of     §  374     p.  556 
cause  improperly  removed  to   Federal  court  may  be  re- 
manded even  after  verdict •     •     •     §  393     p.  589 

VERIFICATION, 

of  bill  in  suit  affecting  rights  assertable  by  corporation     .       §  76     p.  127 

of  answer §  151     pp.  223-224 

answer  denying  facts  stated  in  petition  for  intervention,  to 

have  a §  203     p.  293 

of  pleadings,  how  far  State  practice  respecting,  is  followed     §  300     p.  530 
of  affidavit.     See  also  Affidavit;  Evidence. 


INDEX.  819 

VERMONT, 

constitutes  one  judicial  district §  20     p   55 

times  and  places  of  hold- 
ing court  therein  enu- 
merated           §  26     p.  55 

the  district  of,  included  within  the  Second  Circuit  ...     §  204     p.  295 

VEXATIOUS    CONDUCT, 

dispaupering  party  for §  200     p.  290 

VICE-CONSUL, 

jurisdiction  of  District  Courts  in  suit  against       ....         §  25     p.  34 
See  also  Consul. 

VICTUS   VICTORT   TN   EXPENSIS   CONDEMN ATUS   EST. 

a  rule  of  the  civil  law  applied  to  payment  of  costs    ...     §  327     p.  477 

VIDELICET, 

statements  under  a,  in  bills §  07     p.  114 

VIRGINIA, 

divided  into  two  districts §  26     p.  55 

counties,  times,  and  places  of 
holding  court  therein  enum- 
erated             §  26    p.  55 

districts  of,  included  within  Fourth  Circuit §  204     p.  295 

VOLUNTARY   ASSOCIATION, 

citizenship  of  members  of §  45     p.  88 

when  members  of,  are  necessary  parties  to  suits  affecting         §  45     p.  8S 

suing  members  of,  as  representing §  48     p.  90 

See  Unincorporated  Association. 


W. 


WAIVERS, 

in  bills §  84    pp.  137-140 

omission  of,  when  ground  for  demurrer §  S4  p.  140 

of  answer  under  oath §  148  p.  217 

jury  trial §  374  p.  554 

enforcement  of  judgment  or  decree  not  a  waiver  of  right- 
to  appeal  or  bring  writ  of  error      ........  §397  p.  601 

nor  is  compliance  with  same  a  waiver §  397  p.  601 

of  failure  to  serve  citation  on  defendants  in  error      .     .     .  §399  p.  604 

WAR  CLAIMS, 

no  suits  for,  against  United  States §  15  p.  22 

WASHINGTON, 

district  of,  included  within  Ninth  Circuit §201  p.  20(1 

appeals  from  Supreme  Court  of  the  State  of §  394  p.  59  I 

time  within  which  cause  to  be  docketed  in  United  States 

Supreme  Court  in  case  of  appeals  or  writs  of  error  from  §  403  p.  608 


820  INDEX. 

WASHINGTON,    STATE  OF, 

constitutes  one  district §  2G     p.  56 

WASTE, 

injunctions  to  restrain  commission  of  §  210     p.  302;  §  213     pp.  306-307 

WEAK   MIND, 

capacity  of  persons  of,  to  file  bills  in  equity     .      §  28     p.  64;  §  33     p.  G7 

suits  against  persons  of §  40     p.  79 

See  also  Idiot;  Lunatic. 

WESTBURY,  LORD   CHANCELLOR, 

labors  of,  in  widening  jurisdiction  of  courts  of  equity  .     .      ■     .  §  1     p-  2 
foundations   according  to,    of  interference    by  courts    of 

equity  in  cases  of  unlawful  use  of  trademarks  ....     §  218     p.  317 

WEST    VIRGINIA. 

constitutes  one  judicial  district §  26     p.  56 

times  and  places  of  hold- 
ing court  therein  enum- 
erated              §  26     p.  56 

district  of,  included  within  the  Fourth  Circuit    ....     §  204     p.  295 

WIFE.     See  Married  Women. 

WIGRAM, 

work  of,  on  Discovery  referred  to  on  demurrer  to  the  dis- 
covery     §  109     p.  178 

referred  to  on  negative  pleas §  121     p.  190 

WILL, 

election  under,  as  a  subject  of  relief  in  equity §  2     p.  3 

State  statute  authorizing  setting  aside  of  probate,  enforce- 
able in  Federal  courts §  7     p.  9 

probate  of,  not  set  aside  by  equity §  12     p.  18 

averments  as  to,  in  bill  filed  by  executor    ......       §  78    p.  132 

WISCONSIN, 

divided  into  two  districts §  26     p.  56 

counties,  times,  and  places  of 
holding  court  therein  enumer- 
ated              §  26     p.  56 

districts  of,  included  within  Seventh  Circuit §  204     p.  295 

introducing  in  evideuce  transcripts  from  certain  books  of 

the  District  Courts  in §  268     p.  401 

WITNESS, 

examination  abroad §  2     p.  4 

examination  abroad  as  a  subject  of  jurisdiction  in  equity     .     .   §  2     p.  4 
perpetuation  of  the  testimony  of,  as  a  subject  of  jurisdic- 

tion  in  equity §  2     p.  4 

bills  to  perpetuate  testimony  of §  64     p.  110 

when   defendant  not  prevented  from  being,  in  his   own 

favor •     •     •       §  84     p.  138 

exemption  of,  from  service  of  process §  98    p.  159 

compelling  to  testify §277     pp.  412-413 

procuring  attendance  of,  before  master §  313     p.  460 


INDEX. 


821 


WITNESS  —  continued. 

deposition   taken   in  cause  prior  to  removal  to  Federal 
court,  whether  witness  can  be  compelled  to  sign  same 

after  removal §  392     p.  589 

competency  of.     See  Evidence. 
fees  of.     See  Costs. 

See  also  Evidence. 

WIVES.     See  Married  Women. 
WORKMAN, 

injunction  restraining,  from  disclosing  trade  secrets     .     .     §  206     p.  297 

WRITS, 

of  quo  warranto §  15     p.  22 

remedial,  as  distinguished  from  other  forms  of  injunction     §  205     p.  297 

ne  exeat  republica       .         .' •     •      §§  261-263;  pp.  389-394 

of  assistance  to  put  receiver  into  possession §  318     p.  510 

common-law  procedure  respecting  writs      ....     §  360     pp.  529-530 
form  of,  how  far  State  practice  followed  respecting  .     .     .     §  360     p.  530 

service  of §  300     pp.  529-530 

endorsement  of §  360     pp.  529-530 

of  prohibition    .     . §  362     pp.  532-533 

mandamus §  363     pp.  533-537 

certiorari §  305     p.  540 

habeas  corpus §§  360-368     pp.  541-549 

error  coram  nobis §  379     pp.  561-562 

WRITS,   DUPLICATE, 

against  different  defendants §  22     pp.  29-31 

WRITS   OF   ASSISTANCE, 

when  and  how  issued §  348  pp.  510-511 

WRITS   OF   ERROR   AND    APPEALS, 

in  Supreme  Court  of  United  States §  394  pp.  591-594 

writs  of  error  and  appeals  distinguished §  394     p.  591 

to  judgments  of  Territorial  and  State 

courts §  394  pp.  591-592 

what  cases   Supreme  Court  can  review  by  writ   of 

error  and  by  appeal §  394  pp.  592-594 

value  of  matter  in  dispute §  395  pp.  594-597 

certificate  of  division  of  opinion §396  pp.  597-598 

right  to  appeal  and  bring  error §  397  pp.  598-601 

who  may  appeal,  parties  refusing §  397     pp.  598 

parties  to  appeal  or  writ  of  error  dying,  bringing  in 

personal  representative §  397  pp.  599-601 

time  within  which   writ  of  error  or  appeal  must  be 

taken §  398  pp.  601-002 

writs  of  error,  practice  and  procedure  to  obtain      §  399  pp.  602-604 

service  of,  and  of  citations §399  pp.  603-604 

security  on  writ  of  error  or  appeal §  400  pp.  604-005 

appeals,  practice  and  procedure  in  taking     ...  §  401     p.  605 

appeals  in  habeas  corpus  proceedings    ....     §  368  pp.  548-549 

supersedeas      "          "              "                ....     §  402  pp.  606-607 

return  to  writ  of  error  or  appeal §403  pp.  607-010 


822  INDEX. 

WRITS   OF   ERROR   AND   APPEALS  —  continued. 

review  of  judgments  and  decrees  of  District  Courts  by  Cir- 
cuit Courts §  404  pp.  610-612 

writs  of  error  from  Supreme  Court  to  State  Courts  .     §  405  pp.  612-616 

motions  to  dismiss  appeals  or  writs  of  error    ...     §  406  pp.  616-617 

printing  of  the  record §  407  pp.  617-619 

argument  of  appeals  and  writs  of  error  in  the  Supreme 

Court §  408  pp.  619  623 

decision §  409  pp.  623-62 1 

WRITS    OF   POSSESSION, 

when  awarded  by  Supreme  Court §  409     p.  623 

WRITS    OF    SEQUESTRATION, 

when  issued §  149     p.  221 


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